IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Laurie v. Insurance Corp. of British |
| 2010 BCSC 620 |
Date: 20100430
Docket:
09-0365
Registry: Victoria
Between:
Richard
Laurie
Plaintiff
And
Insurance
Corporation of British Columbia
Defendant
Before: The Honourable Madam Justice H. Holmes
Reasons for Judgment
Counsel for the Plaintiff: | Sarah |
Counsel for the Defendant: | Charlotte |
Place and Date of Trial: | Victoria, April |
Place and Date of Judgment: | Victoria, April |
INTRODUCTION
[1]
Richard Laurie is a plumbing contractor and gas
fitter who, in September 2008, had three employees working at the Sheraton Four
Points Hotel in Langford. When some large payments came through for Mr. Laurie
and other contractors working at the hotel, they celebrated at the adjacent
West Coast Taphouse over the course of a Friday evening.
[2]
As Mr. Laurie travelled home from the
Taphouse, his Ford F350 truck left the road and arrived on its side against
another vehicle parked in a residential driveway. Mr. Laurie was in the
vehicle but, fortunately, was not seriously injured. The truck was damaged
beyond repair.
[3]
ICBC refuses to pay Mr. Laurie for the loss
of the vehicle mainly because, it says, Mr. Laurie drove the vehicle while
seriously intoxicated and therefore breached his insurance policy and forfeited
his right to coverage. Mr. Laurie agrees that he was seriously
intoxicated, but says that he was not driving at the time of the accident. He
says that because he was intoxicated, he accepted the offer of a man named
Tyler to drive him home in the truck. He says that he does not know or
remember the accident itself or how Tyler quickly disappeared from the truck
and the scene, and, having no information about Tylers identity, has been
unable to find him since.
[4]
In this litigation, Mr. Laurie claims
damages for breach of contract, for ICBCs failure to pay the agreed cash value
($29,000) of the truck less the $300 deductible.
[5]
The parties agree that Mr. Lauries claim
for damages reflecting the approximately $3,500 in interest on his vehicle loan
since the accident, which ICBC disputes as beyond the scope of his insurance
policy, should be adjourned until after the determination of whether he is
entitled to recover at all.
THE ISSUES
[6]
The evidence and the parties positions, which I
will describe in the Discussion below, give rise to the following issues:
1. whether Mr. Laurie was driving the truck at the time
of the accident, and
2. if Mr. Laurie was not the driver, whether s. 55(5)
of the Insurance (Vehicle) Regulation, B.C. Reg. 447/83 deprives Mr. Laurie
of coverage for failing to ensure that Tyler was properly licensed to drive and
not intoxicated.
[7]
During the trial, ICBC contended also that Mr. Laurie
breached the conditions of his insurance policy (through the effect of paragraphs
75(a)(ii) and (c) of the Insurance (Vehicle) Act, R.S.B.C. 1996,
c. 231) by knowingly misrepresenting a fact or making a wilfully false
statement relating to the claim.
[8]
However, in closing submissions Ms. Salomon
agreed that, to the extent that ICBCs position in this area relies on Mr. Lauries
statement that he was not the driver, it rests on the same evidence and has
identical effect as ICBCs position that Mr. Laurie breached his policy by
driving while intoxicated.
[9]
Ms. Salomon fairly conceded also that the
evidence is insufficient to support ICBCs alternative position that if Tyler
was, in fact, the driver, then Mr. Laurie wilfully misrepresented to ICBC
that he knew almost nothing about Tylers identity or location.
[10]
ICBC therefore abandoned its position concerning
alleged false statements and the application of paragraphs 75(a)(ii) and (c).
DISCUSSION
1. WAS MR. LAURIE THE DRIVER?
[11]
Mr. Laurie acknowledges that because of his
intoxication, he would have breached his insurance contract, disentitling him
to payment for the loss of the truck, had he been the driver at the time of the
accident. This is the combined effect of s. 75 of the Insurance
(Vehicle) Act and s. 55(8)(b) of the Insurance (Vehicle) Regulation,
the applicable portions of which read as follows:
Act
75 All claims
by or in respect of
the insured are invalid and the right of
an insured
to insurance money under the plan
is forfeited if:
(b) the insured violates a term or condition of or commits a fraud
in relation to the plan
.
Regulation
55(8) An insured
shall be deemed to have breached a condition of section 49 and Part 6 where
(a) the insured
is operating a vehicle while the insured is under the influence of intoxicating
liquor or a drug or other intoxicating substance to such an extent that he is
incapable of proper control of the vehicle.
[12]
ICBC agrees that it bears the burden of proving
that Mr. Laurie was the driver.
[13]
Mr. Laurie testified that he was not.
[14]
He testified that the celebratory drinking began
in the Taphouse at about 4:00 p.m. He was called out at one point to a
plumbing emergency in the hotel, but he put off the main work on that job until
Monday because, with his drinking, he was in no shape to work. He also left
the Taphouse a few times during the evening to accompany friends or co-workers to
the smoking area outside.
[15]
Mr. Laurie testified that after he returned
from the washroom at around 11:00 p.m., he realized that all of the people
he knew had left. He went outside to the smoking area, and there met and spoke
with a person who introduced himself as Tyler. Tyler laughed at Mr. Laurie
stumbling around, and they chatted about the truck, which Mr. Laurie had
modified to increase its power.
[16]
Mr. Laurie knew that he was too intoxicated
to drive. He testified that he tried to telephone his wife, but could not
reach her at the various locations he expected her to be with the four
children; his wife did not have a cell phone.
[17]
He testified that when Tyler offered to drive
him home, he made a bad choice: he unlocked the truck door, threw the keys
inside for Tyler, and got into the passenger area of the truck.
[18]
Mr. Laurie testified that his memory from
then on is spotty. He remembers the loud noise of the truck engine as the
truck climbed a hill shortly before the accident. He does not remember how the
accident happened or its impact, but remembers finding himself in the back seat
area of the truck, music blaring from the truck, and with people around trying
to help. Although he has since been told that the truck was on its side — as
other evidence established it was — he does not recall ever being aware of that.
He does recall attempting to get out of the trucks rear window, and a woman then
pulling him out.
[19]
The woman Mr. Laurie remembers was,
clearly, Kimberley Parfitt. She was one of two witnesses ICBC called in the
trial to establish that within a short time of the accident only Mr. Laurie,
and no one else, was in or around the truck.
[20]
Ms. Parfitt and Randi-Leigh MacNutt were at
a party in a house next to the driveway where the truck came to a stop on its
side. Ms. Parfitt testified that, from the back porch of the house, they
heard a screech of tires and then a crash. She testified that they both
immediately ran toward the crash, and that she reached the truck within about
6-7 seconds.
[21]
Ms. Parfitt described helping Mr. Laurie
out of the truck through the rear window. She has occupational first aid
training, and when Mr. Laurie was out of the truck she asked him to focus
on her so that she could assess his mental condition. She then helped him into
the house, and attended briefly to his injuries before paramedics arrived and
took over.
[22]
Ms. MacNutt testified that she also ran to
the general area of the truck and watched Ms. Parfitt dealing with Mr. Laurie.
However, Ms. MacNutt did not approach the truck itself and had no direct dealings
with Mr. Laurie.
[23]
Neither Ms. Parfitt nor Ms. MacNutt
saw anyone else in or around the truck, or in the roadway, or moving out of or
away from the truck.
[24]
Ms. Salomon submits that it would have been
impossible for the person Mr. Laurie describes as Tyler to have escaped
the overturned truck and Ms. Parfitts and Ms. MacNutts notice in
the very short time between the accident and when they either reached the truck
or were able to see it. She submits that Mr. Lauries evidence that such
a person was driving is not credible.
[25]
In my view, aspects of Mr. Lauries account
of the events and his evidence that he had no information with which to
identify Tyler are not entirely convincing.
[26]
For example, Mr. Laurie offered remarkably
little in description of Tyler: only that he had dirty blond hair, and was
either the same height as his own or a little taller. He could not describe
Tylers clothing. He could also offer no information about whether he and
Tyler had made plans for what Tyler would do once he had driven Mr. Laurie
to his home.
[27]
Also, Mr. Laurie offered no explanation for
why he accepted Tylers offer, instead of taking one of the safer options
available to him. He agreed that he had a credit card with him, had a cell
phone with him, was aware of the red nose program that would have driven him
home, and was aware that rooms were available in the hotel.
[28]
Mr. Lauries unsuccessful efforts to find
Tyler after the accident were somewhat half-hearted.
[29]
He did take steps to place an advertisement in
the Victoria Times Colonist, and it was through no fault of his own that, as he
has recently learned, the advertisement did not run. He also spoke — to no
avail — early in the week following the accident, with the people with whom he
had been drinking, and with the bar owner, the bar manager, and some other
people at the Taphouse.
[30]
It was Mr. Lauries five or six posters
around the bar and the area of the bar that call into question the sincerity of
his efforts to find Tyler. The posters included only a small photograph of the
truck, and the words, Wanted: info on the person who drove this truck on
Friday September 26, 2008, please call Rick @ [phone number]. The photograph showed
only a limited view of the truck, failing to show Mr. Lauries business
logo and the contact information that the truck bore in at least two places. Nor
did the posters mention the time of day of the relevant driving, an omission of
some significance, if Mr. Laurie was looking for Tyler, because Mr. Laurie
had himself driven the truck to and from the hotel and the Taphouse several
times during the work day. The posters also failed to mention the trucks
departure point, the route over which it was driven, or the location of the
accident. Only the fact that Mr. Laurie posted them near the Taphouse and
in the bar suggested that the driver and the truck in question had some
association with those locations.
[31]
But other evidence supports Mr. Lauries
evidence and his position in the trial that Tyler was the driver.
[32]
Ms. Parfitt testified that when
Mr. Laurie first came out of the truck, he told her that someone named
Tyler had been driving, and asked whether Tyler was okay. Later, in the house,
he told Ms. Parfitt that he had been drunk, and had therefore let Tyler drive.
[33]
Ms. MacNutt testified that as
Mr. Laurie was walking towards the house, she heard him asking for a man
named Tyler. She testified that because of Mr. Lauries questions about
Tyler, people from the party began to look around the area for him.
[34]
Counsel agreed that Mr. Lauries reported
statements about Tyler were admissible as res gestae statements
according to the principles described in R. v. Charles, 2009 BCSC 1391.
[35]
In my view, these statements reduce the force of
the inferences otherwise flowing from the weaknesses I have identified in Mr. Lauries
account of the events before and after the accident. To conclude otherwise
would require a finding that Mr. Laurie concocted and delivered the Tyler
story in his seriously intoxicated state shortly before or immediately after the
accident, and had the presence of mind to deliver it to his rescuers in order
to falsely protect his position. In my assessment, Mr. Laurie would not
have acted in that manner.
[36]
Ms. Salomon submits that Mr. Lauries
position that Tyler was driving is inconsistent with Ms. Parfitts and Ms. MacNutts
observations that they ran quickly to the scene of the accident and never saw
anyone who could have been Tyler.
[37]
These witnesses rejected any suggestion that
their run from the back porch of the house may have taken longer than 6-7
seconds. In cross-examination, Ms. Parfitt verified the actual duration
of that time by using the courts digital clock, and then confirmed her
estimate. Ms. MacNutt rejected outright the suggestion that the lapse of
time may have been longer than 6-7 seconds, but gave no reason for doing so.
[38]
For Ms. Parfitt, the 6-7 seconds began when
she heard the squeal of tires, which was about 3 seconds before she heard the
crash, and ended when she reached the truck. For Ms. MacNutt, the 6-7
seconds started with the crash, which she testified was a couple of seconds
or not even that long, from the time of the screech.
[39]
I have no doubt that Ms. Parfitt and Ms. MacNutt
are sincere and honest witnesses. Their identical time estimates of 6-7
seconds, even though it begins at different points, causes concern that they
have discussed the events more than they now remember. Nonetheless, I am
satisfied that they arrived at or near the truck within a very short period of
time, although likely longer than 6-7 seconds.
[40]
In my view, their evidence casts suspicion on Mr. Lauries
evidence that Tyler was driving and must have left the truck and the scene within
the short time they took to arrive, but it is of limited effect. Neither
witness personally took part in the search for Tyler, and no other evidence in
the trial indicated how thorough or extensive the search may have been. The
area was relatively dark (with some street lights), and offered many potential
hiding places for Tyler, were he minded to wait briefly and then flee the scene
when the rescuers had gone. I am not persuaded, on the evidence, that the fact
that neither Ms. Parfitt nor Ms. MacNutt saw anyone who might have
been Tyler amounts to proof that no such person managed to leave the truck and
escape their view.
[41]
On all the evidence, ICBC has not met its burden
of proving on a balance of probabilities that Mr. Laurie was the driver.
2. DID MR. LAURIE
BREACH HIS POLICY BY NOT ENSURING THAT TYLER WAS LICENSED AND SOBER TO DRIVE?
[42]
ICBC submits that even if Tyler was the driver, Mr. Laurie
breached the conditions of his insurance policy and forfeited his right to
coverage because he failed to ensure that Tyler was properly licensed and sober
to drive.
[43]
ICBC relies on section 75 of the Insurance
(Vehicle) Act, as quoted earlier. In the present context, ICBC relies
also on s. 55(5) of the Regulation, which reads as follows:
Regulation
55(5) An insured named in a[n owners] certificate
must
not permit the vehicle described in the certificate
to be operated by a
person or for a purpose that breaches a condition of this section or Part 6.
[44]
Mr. Laurie was asked in cross-examination
whether he took certain steps to ascertain that Tyler was authorized and fit to
drive, such as by asking to see his drivers licence, ensuring he was not prohibited
from driving, and ascertaining whether or not he was intoxicated. In each
case, he responded that he did not recall. On the evidence as a whole, I find
that he did not take those steps.
[45]
But that does not mean that s. 55(5)
deprives Mr. Laurie of coverage.
[46]
Subsection 55(5) says that an insured must not
permit his or her vehicle to be operated in breach of the insurance
conditions. As I read the subsection in its context in the Regulation,
it presupposes that the vehicle has, in fact, been operated in breach of
the conditions, and it denies coverage to an insured who permitted that breach to
occur. The subsection does not cast a non-inquiring insured into an independent
breach, irrespective of whether the vehicle was actually operated in breach of
the insurance conditions.
[47]
I am not persuaded that the circumstances of the
accident themselves indicate that Tyler was unlicensed or was intoxicated so as
to be incapable of the vehicles proper control. No other evidence
establishes that Tyler operated the vehicle in breach of the insurance
conditions
[48]
Of no application, therefore, are the cases on
which ICBC relies, which discuss the extent of the inquiries an insured must
make in order to avoid the effect of s. 55(5). In those cases, the
insurer proved a breach by the operator: see, for example, Kennedy v. ICBC,
[1993] B.C.J. No. 1179, 16 C.C.L.I. (2d) 38 (B.C.S.C.), Peters v. Sask.
Government Insurance Office, [1956] S.J. No. 45, 2 D.L.R. (2D) 589
(Sask. C.A.), Nielson v. Insurance Corp. of British Columbia (1997), 37
B.C.L.R. (3d) 223, 92 B.C.A.C. 110 (C.A.).
[49]
Mr. Lauries failure to confirm that Tyler
was licensed and sober to drive does not deprive him of coverage, because the
evidence does not establish that Tyler was unlicensed or intoxicated.
CONCLUSION
[50]
Mr. Laurie is entitled to damages for the
total loss of the truck.
[51]
If the parties are unable to agree as to the
amount including interest, they should within thirty days of these reasons
arrange through Trial Scheduling to seek the courts directions about how the
matter will be heard. Otherwise, damages will be in the amount set out in the
table Ms. Salomon submitted.
H. Holmes, J.
The Honourable Madam Justice H. Holmes