First published in MB's Transportation Newsletter

The plaintiff, in Tucci v. Pugliese, [2009] O.J. No. 2956, Maria Tucci, was seated in her kitchen when an uninsured motor vehicle driven by the defendant, Giuseppe Pugliese, ran into a wall of her house. The collision caused a sudden, loud bang and violent shaking of the house, which allegedly caused tremendous shock to the plaintiff and inflicted damage to the home estimated at between $85,000 and $100,000.

The plaintiff made no allegations that she was struck, directly or indirectly, by the defendant’s motor vehicle or anything that the motor vehicle had struck. The plaintiff also made a claim against the insurers of the policy of auto insurance issued to her husband on his automobile.
Under OPCF 44R endorsement for "Family Protection Coverage", coverage was available to Ms. Tucci, as the spouse of the named insured if she could establish she was "not an occupant of an automobile who is struck by an automobile".

The defendant insurers brought a motion for summary judgment dismissing the plaintiff’s claim, arguing that coverage was not available to the plaintiff as she was not an occupant of an automobile and she was not struck by an automobile.

Although the Court found the plaintiff was not struck by an automobile in the ordinary sense of the word, it held that such definition requiring physical contact was too restrictive. Langdon J. had no difficulty extending the ordinary meaning of "struck" in the Family Protection Coverage Endorsement to include situations of notional striking where there was a significant degree of proximity between the automobile and a non-occupant of a motor vehicle and a real apprehension by the non-occupant of imminent peril due to the actions of the motorist.

This concept of notional striking was first formulated in Talbot v. Gan General Insurance Co. (1999), 44 O.R. (3d) 252, [1999] O.J. No. 1741 (Ont. S.C.J.),. to occur in circumstances where the operator of an automobile, by his conduct in its operation, so imperilled a person who is not an occupant of an automobile that said person reasonably believes he or she has no alternative but to take immediate evasive action to avoid being struck. If he or she is injured in the course of taking such evasive action, his injuries are the result of being notionally struck. An application for leave to appeal the Talbot v. Gan General Insurance decision was dismissed (1999 CanLII 14796 (Ont. S.C.J.)).

Langdon J. found that taking evasive action ought not to be an indispensable element of a notional touching, but rather there must be an immediate sensory invasion. In support of his decision Langdon J. created a hypothetical wherein the plaintiff was not seated at her kitchen table, but rather, standing at the top of her basement stairs when the defendant’s automobile struck her dwelling right behind where she was standing. If the sudden loud bang had startled her, and had caused her to lose her balance, and tumble down the stairs, resulting in catastrophic injuries, the Court believed it would be difficult to conclude that the plaintiff had not undergone an immediate sensory invasion or notional touching.

Although the plaintiff's injuries would not have resulted from an attempt to take evasive action due to the collision, they arguably resulted from a proximate, sensory invasion, or the notional equivalent of being struck.

For the foregoing reasons, Langdon J. concluded that the plaintiff had an arguable case as to whether she met the definition of "insured person" and therefore dismissed the insurers’ motion for summary judgment.