In the recent decision, Tokio Marine & Nichido Insurance Company v. Security National Insurance Company, 2019 ABQB 622, the Alberta Court of Queen’s Bench (the “Court“) heard an appeal of a Master’s of an application for an order declaring that another insurer had a duty to defend a motorist involved in an accident. This is an important decision for insurers as it provides an examination of a unique factual scenario where there was overlapping insurance coverage.
On June 4, 2016, Ms. Sran drove a vehicle owned by Mr. Gill (the “Gill Vehicle“), to an Acura dealership in Calgary, Alberta (the “Dealership“), for servicing. Ms. Sran was not a named insured under Mr. Gill’s insurance policy, and was not his spouse, however, she did have permission to take the Gill Vehicle, and had been informed by Mr. Gill that the Dealership would provide her with a courtesy car. After signing an agreement with the Dealership (the “Agreement“), Ms. Sran was given a courtesy car (the “Courtesy Car“), and left the Dealership.
While Ms. Sran was operating the Courtesy Car she collided with a skateboarder (the “Skateboarder“).
The Gill Vehicle was insured by Security National Insurance Company (“SNIC“), and the Courtesy Car was insured by Tokio Marine & Nichido Insurance Company Limited (“Tokio Marine“). Tokio Marine sought an order declaring that SNIC was required to defend Ms. Sran in the action commenced by the Skateboarder. Tokio Marine’s application was denied by a Master, who found that SNIC did not have to defend the claim. In this case, Tokio Marine was seeking to have the Master’s decision overturned, on the basis that Mr. Gill gave his consent for Ms. Sran to drive the Gill Vehicle, and that consent transferred to the Car.
Additionally, a term of the Agreement stated that Ms. Sran, as the signatory, would be liable for any damage to the Courtesy Car, and that Ms. .Sran’s insurance would be the primary carrier in the event of any loss.
The Decision of the Court
Justice Fraser agreed with the previous decision from the Master, and held that SNIC did not have to defend the action brought by the Skateboarder, and that Tokio Marine would be responsible for defending the action. Justice Fraser stated that while there was an understanding between Mr. Gill and Ms. Sran that the Gill Vehicle would be left at the Dealership for servicing, and that Ms. Sran would have a courtesy vehicle, that understanding could not be extended to the other parties involved.
Moreover, Ms. Sran agreed to a number of conditions when she signed the Agreement prior to using the Car, and there was nothing to demonstrate that Mr. Gill ever agreed to any of the terms, or that he even knew about them. Mr. Gill was not the owner of the Courtesy Car, and as a third party with no interest in the Courtesy Car, the Court simply was not able to find that he had the ability to give consent to anyone to drive it, despite the fact that he likely expected that a Courtesy Car would be provided.
In its submissions to the Court, Tokio Marine also argued that pursuant to the Miscellaneous Insurance Provisions Regulation, Alta Reg 120/2001, the Courtesy Car should be considered a rental vehicle, which would result in a priority flip for the insurers in regards to primary responsibility for defending any claims. The Court also found this argument lacking, as the Dealership clearly did not fall under the definition or a lessor or renter, as defined in the Traffic Safety Act, RSA 2000, c T-6.
This decision provides clarity for interpreting insurance policies in a unique factual scenario that all stakeholders involved in priority dispute should be familiar with. Specifically, this decision serves as a reminder that situations that feature overlapping insurance policies can be reconciled by a plain language reading of their terms.
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Source: Mondaq News
The excerpredted article was written By Rob Bostelaar | Automotive Canada
The agreement contains no commitments beyond a pledge to work together on regulations to cut greenhouse-gas production and promote clean vehicles.
“In our view it’s premature to be saying this is the road we’re going to go down without understanding all the consequences and costs of going down that road,” said David Adams, president of the Global Automakers of Canada.
The Canadian Vehicle Manufacturers’ Association (CVMA), representing the Detroit Three, said any dual-market system could undermine the still-to-be ratified treaty that will replace the North American Free Trade Agreement.
Canada has long matched the United States on safety and emissions regulations. But McKenna’s announcement signals that Canada won’t follow U.S. Environmental Protection Agency (EPA) recommendations to freeze tailpipe standards at 2020 levels through 2026 instead of requiring yearly improvements to reach a fleet average of 54.5 mpg in government testing, or about 36 mpg in on-road driving.
Carmakers had lobbied for lower yearly increases to the 54.5 mpg target — though not a freeze — arguing that the Obama-era federal regulations they signed on to in 2012 didn’t anticipate softening fuel prices and rising consumer demand for larger vehicles.
It also inserts Canada into a political confrontation typical of the President Trump era. California is leading a coalition of 17 states and the District of Columbia in a federal court suit to overturn the EPA plan, while the Trump administration is seeking to revoke the right of California — long a driver of U.S. emissions policy — and other states to set their own limits.
IS TOUGHER BETTER?
McKenna said aligning with California’s mileage targets and zero-emission vehicle program could spur investment in clean transportation in Canada. The two jurisdictions represented four million of the 19 million new light vehicles sold in Canada and the United States in 2018.
“We can build the vehicles of the future here at home, create good jobs, and remain competitive, all the while reducing pollution and helping Canadians save hundreds of dollars a year at the pump,” McKenna said in a statement.
Industry groups say a more likely result would be reduced product offerings and higher prices as consumers compete for fewer available vehicles.
“Any movement away from a harmonized approach will hinder choice and increase costs for Canadian consumers,” warned the Canadian Automobile Dealers Association (CADA), representing 3,200 franchised new -car and truck dealerships across the country.
CADA didn’t estimate how much prices could rise, but spokesman Huw Williams suggested some shoppers could end up keeping their old cars instead of moving to cleaner, less thirsty vehicles.
“That’s a consumer cost as well, and an economic cost,” Williams said.
Flavio Volpe, president of the Automotive Parts Manufacturers’ Association, said that Canadian assembly plants now are chiefly devoted to crossovers and larger vehicles. McKenna’s contention that the MOU would encourage automakers to change the type of vehicles they build in Canada is unrealistic, he said.
“You would put companies into a difficult position of not selling locally what they make locally, increasing their cost per unit and decreasing the competitiveness of local manufacturing,” he said. “And you would de facto put a cloud over the Canadian automotive value proposition.”
Still, Volpe believes the federal Liberals took a “prudent step” with the non-binding agreement, which conveys opposition to lower limits on emissions but doesn’t lock Canada in. He said government officials, who are conducting their own midterm review of the fuel-economy standards, heeded industry advice in devising Canada’s strategy.
FEAR OF TWO STANDARDS
If automakers sought relief from the Obama-era reductions — which could still remain as the effective standard if enough states side with California — they’re more concerned at the prospect of building to two markets even as they invest hundreds of millions in electric vehicles and other alternatives to meet longer-term emissions goals.
Adams and Nantais said their groups have joined their U.S. counterparts in pressing for a single standard acceptable to California, Canada and U.S. federal regulators.
“We want a reasonable standard or regulation that’s achievable, recognizes the dynamic in the marketplace, recognizes fuel costs, recognizes technology costs,” said Nantais.
Any resolution, however, could be far off.
Our current system of trying to change driver behaviour largely consists of traffic tickets, vehicle impoundment and driver’s licence suspensions. They all rely on traffic policing to find and deal with those who don’t follow the rules. How efficient is that?
When I worked on South Okanagan Highway Patrol, we were responsible for Highway 3 from the Manning Park works yard to the Rock Creek Canyon Bridge, Highway 5A from Princeton to the Okanagan Connector, Highway 3A from Keremeos to Kaleden and Highway 97 from the border at Osoyoos to Peachland. A typical dayshift consisted of 3 constables when we were all working.
What were a misbehaving driver’s chances of being caught? Not that great.
ICBC has run one trial with driver telematics and are in the process of running a second. The first consisted of volunteers from their Customer Advisory Panel and the current one will be conducted with volunteers who are in the Graduated Licensing Program (GLP).
One result of the first trial was announced by ICBC’s CEO:
“From our first telematics pilot earlier this year, ICBC has developed a telematics strategy to identify how the technology can be used to improve road safety and drive behavioural change among higher-risk drivers in B.C.,” said Nicolas Jimenez, ICBC’s president and CEO. “We heard from those pilot participants that most believed the use of telematics would make the roads safer for everyone. This is our next step in a thoughtful examination of telematics technology and how it might help to keep these drivers safer.”
Currently, there is one form of electronic monitoring in effect for drivers who have shown that they pose a significant risk to themselves and other road users. Drivers who have received alcohol-related driving prohibitions require an ignition interlock to prove that they are sober enough to drive.
RoadSafetyBC says that the interlock program evaluations have consistently found up to a 90% reduction in repeat drinking and driving while the device is installed.
One of the more common issues on our highways is drivers who drive at excessive speeds, that is more than 40 km/h above the posted speed limit. If they are found and dealt with by the police, a heavy fine and a vehicle impound is imposed. A GLP driver will also be subject to a driving prohibition.
Speed limit adherence is a relatively simple function for electronic monitoring. GPS provides both location and speed and the speed can be confirmed by the vehicle’s own data network. There are apps available right now that will allow you to monitor your ability to drive at or below the posted speed limit.
Perhaps the requirement for a year of speed monitoring following an excessive speeding incident would result in a 90% reduction in speeding by that driver.
RoadSafetyBC also places high risk drivers on probation under the Driver Improvement Program.
In addition to speed, telematics can monitor hard braking and acceleration as well as abrupt steering. Consistently recorded, these behaviours are indicators of high risk driving practices.
Would electronic monitoring also result in a 90% reduction in high risk driving behaviour while a driver is on probation?
How long will it be before ICBC uses telematics to set insurance rates? It’s probably not that far in the future.
Consistent safe driving will already save you up to 25% on the cost of optional insurance with Belairdirect here in B.C. All that you need to do is use their Automerit app to show that you deserve the rate reduction.
Whether you choose to use electronic monitoring of your driving for personal benefit or have it imposed on you by the government when you show that you don’t play well with others we could all be safer because of it.