McCague Borlack LLPLitigation Boutique, GLOBAL Litigation Law Firm

 

 

 

Articles and Publications

A dirt bike is considered an automobile by the Ontario Court of Appeal

March 2010

Rougoor v. Co-operators General Insurance Co., 99 O.R. (3d) 139, involved an action which arose as a result of a dirt bike incident that occurred in Florida. The appellant was insured under a standard automobile policy with the respondent. Her policy of insurance with the respondent, listed, among other family-owned vehicles, one off-road dirt bike of which she was listed as the principal driver. The appellant was also listed as a secondary driver for another off-road dirt bike under the same policy of insurance.

The appellant was seriously injured in a dirt bike incident in Florida when she was operating a dirt bike that was the same make and model as her own insured bike. The Florida bike was owned by her friend and under Florida law, her friend was not required to insure the dirt bike, so it was uninsured at the time of the incident.

The appellant applied for Statutory Accident Benefits under her automobile policy of insurance with the respondent, however her application was denied and an application judge dismissed her application for declaration of entitlement.

The Court of Appeal, on January 25, 2010, reported that the primary issue to be determined was whether the Florida dirt-bike was an automobile within the appellant's insurance policy. The Court applied the test set out in Adams v. Pineland Amusements Ltd. (2007), 88 O.R. (3d) 321, which considered the following:

  1. Is the vehicle an "automobile" in ordinary parlance?
  2. Is the vehicle defined as an "automobile" in the wording of the insurance policy?

    If not, then,

  3. Does the vehicle fall within any enlarged definition of "automobile" in any relevant statute?

The appellant conceded (1) and indicated that the dirt-bike was not an "automobile" in common parlance. With respect to (2), the Court opined in its Endorsement that in its opinion, through the wording of the policy, it may be deemed that the appellant's own dirt-bike was an automobile. Lastly, in considering (3), the Court of Appeal opined that for the purposes of coverage under the policy at issue, the Florida dirt-bike must also be considered an automobile.

The appeal was allowed, judgment was set aside and a declaration was granted that the appellant was entitled to Statutory Accident Benefits.


 

TORONTO | OTTAWA | KITCHENER | BARRIE

Copyright McCague Borlack LLP - Legal Notice | mccagueborlack.com | Follow us on Twitter twitter

McCague Borlack LLP is a member of the Canadian Litigation Counsel, a nationwide affiliation of independent law firms. Through CLC's association with The Harmonie Group, our clients have access to legal excellence throughout North America, the U.K. and Europe.

clcnow.com | harmonie.org