Do you enjoy working on your car at home? If so, have you considered what would happen if your efforts inadvertently caused an injury to another?
In Wawanesa v. ICBC, 2021 BCSC 595, the Supreme Court of British Columbia confirmed that an at-home automobile repair constitutes the “use and operation” of a vehicle such that it engages the owner’s vehicle policy as well as the home insurance policy.
The background to the case involved a professional hockey player, Tyson Sexsmith alleging that his playing days were cut short when his father-in-law, Gary Upton negligently injured him. The injury allegedly occurred when Mr. Upton was in his backyard sledgehammering a bent metal plate that he had removed from his classic 1955 Chevrolet Bel Air (the “Activity”). Mr. Sexsmith commenced a personal injury action against Mr. Upton (The “PI Action”).
Mr. Upton was insured by Wawanesa under a home-owner’s policy while his Bel Air was insured by ICBC.
A dispute arose between the two insurance companies as to who must defend Mr. Upton in the PI Action. The Court found that the PI Action engages the ICBC policy as the Activity was in respect of Mr. Upton’s “use or operation” of the Bel Air. The Court further found that the Wawanesa policy was also engaged given the allegations of negligence and breaches of duties owed by Mr. Upton to Mr. Sexsmith under the Occupiers Liability Act. As such, the Court ultimately decided that both insurers had a duty to defend Mr. Upton in the PI action.
The Wawanesa decision includes a comprehensive and interesting discussion of several “use and operation” cases including the Supreme Court of Canada’s decisions in Amos v. ICBC and Citadel General Assurance Co. v. Vytlingam.
We acted as counsel for ICBC in this matter.