In an interesting decision, Mr. Justice David Brown has ruled that a fleet policy issued by Royal & SunAlliance provided uninsured motorist coverage to an employee of Royal’s named insured. The employee had been injured while pouring gasoline into the carburetor of a Jeep owned by the named insured. At the time, the Jeep was unplated and not insured under Royal’s policy.
In Wing v. 1198281 Ontario Ltd., Royal argued that the injured plaintiff could not look to it for uninsured motorist coverage because of an exclusion contained in the definition of “uninsured automobile” in s. 265(2) of the Insurance Act:
…an automobile with respect to which neither the owner nor driver thereof has applicable and collectible bodily injury liability and property damage liability insurance for its ownership, use or operation, but does not include an automobile owned by or registered in the name of the insured or his or her spouse. [Emphasis added by Brown J.]
Royal argued that since the Jeep in question was one which was owned by its named insured, Rick Amyotte, the case fell within the italicized portion of s. 265(2) and therefore, the Jeep was not an “uninsured automobile”.
However, Justice Brown drew a distinction between an insured and the insured. He held that if it had been the named insured who had been injured, the italicized exclusion in s. 265(2) would apply and there would have been no coverage. But because the plaintiff Wing was not the insured but only an insured, His Honour concluded that the section did not apply to him and the uninsured coverage was in force:
To interpret ‘the insured’ as referring only to the plaintiff and not to Mr. Amyotte in the circumstances of this case in my view produces a fair result. If Mr. Amyotte had suffered the injury instead of the plaintiff, one could understand Royal pointing to the exclusion clause and saying, “You had the chance to insure all of your vehicles with us; you cannot expect to look to us when you deliberately chose not to insure the vehicle that caused the injury.” It is quite another matter for Royal to deny coverage to the plaintiff when he had no ability to insure the Jeep owned by Mr. Amyotte.