To Stop a Thief – What Could Go Wrong?
D'Andrea v Economical Mutual Insurance Company, 2022 ABCA 337
An SEF 44 is a separate contract rider on your own insurance policy, also known as an SEF 44 Family Protection Endorsement. If the Defendant is uninsured, or underinsured or unknown, then the SEF 44 rider on your own insurance policy may cover you (and other family members) for the remainder of your damages not covered by the Defendant’s policy or the Motor Vehicle Accident Claims Fund. There are specific contractual limitations in the SEF 44 rider as to when coverage will be provided to the policyholder.
In this case, Teresa D’Andrea was injured when she attempted to stop someone named Stokes from stealing her car. When she realized what was happening, she ran towards the car and leaned into the open window. She was dragged by the moving vehicle for about 40 feet until she fell off landing on her face and right leg. Stokes was driving the car without consent and otherwise uninsured. D’Andrea wanted her SEF 44 Policy with Economical Mutual Insurance Company to cover her injuries, but Economical declined. At a Summary Trial the trial judge held that D’Andrea was entitled to coverage for the injuries she suffered. Economical appealed.
The SEF 44 Policy defined “occupant” as “a person driving, being carried in or upon or entering or getting on to or alighting from an automobile”. The Policy further stated that there is no coverage to an “occupant” of any automobile which is being used without the consent of the owner. The Court of Appeal observed that the effect of these provisions is to deny coverage to anybody who is driving the vehicle without the consent of the owner and anybody who, with that person, is an “occupant” of the vehicle. This makes sense. There is no SEF 44 coverage if you steal a vehicle or if you or family member are a passenger in a stolen vehicle and are injured in a car accident with an uninsured or underinsured driver.
The SEF 44 does cover injuries to the named insured (D’Andrea) when “not an occupant of an automobile who is struck by an automobile” (if the policyholder is a pedestrian struck by another vehicle or is struck by their own vehicle). Accordingly, D’Andrea’s coverage depended on her being “struck” by the vehicle while not being an “occupant” of the vehicle.
Economical argued that D’Andrea was an “occupant” because she was either “getting in” to the vehicle, or was being “carried” by it as she tried to stop the thief Stokes. The trial judge found as fact that D’Andrea was merely attempting to get the attention of Stokes to stop him from taking her car and did not intend to “get into” the car while it was under the control of an unknown third person. Further, while the words “being carried upon” may include a situation where someone is voluntarily upon the car, or sitting on the car, the phrase should not be interpreted to include holding onto a vehicle when the driver swerves and accelerates (being dragged beside a vehicle).
The trial judge also found that being dragged by the vehicle in this way amounted to being “struck” by the vehicle. The “striking” occurred when Stokes set the car in motion, and D’Andrea was struck by the vehicle in some fashion when Stokes veered out into the street and accelerated the vehicle. In the Court of Appeal’s view, the trial judge reasonably interpreted the policy wording and made findings of fact that were entitled to deference. Economical’s appeal was dismissed.
D’Andrea’s injuries and losses were covered by her SEF 44 Policy despite the insurer’s initial denial of coverage and arguments in both Courts.