Court decision re insurance coverage at the track
09-06-2011, 12:21 AM
#16
1st Gear
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4. Court costs are not awarded in civil suits unless it can be shown that the case was an unwarranted or an unnecessary suit. Generally, if the suit is an interesting one or a good test of civil law that opened up a good legal argument, 'cost's are normally absorbed by both parties and not awarded to one side or the other. Criminal cases are a different matter; citizens are up against the weight of the State who have enormous resources at their disposal - hence court costs can (but not all the time) be awarded to people found innocent at criminal trials.
Civil cases are different. You generally sue because you have suffered a loss due to the negligence of another party. If you are successful in demonstrating that the other party was in fact negligent, then your costs to do so form part of your loss and you may be awarded all or a portion of your costs by the trial judge.
5. Most insurance agreements have been or will be modified to exclude ANY off road 'collision' coverage as a result of incidents like this. Failure to notify your insurance company that you do not accept the conditions of the renewal disclosure forms (in affect declining insurance) is deemed acceptance of those conditions.
Under the terms of the current basic Ontario policy, the only grounds to refuse a property damage claim would be racing or speed contests on or off public roads, and criminally illegal driving that results such as impaired or dangerous driving, fail to remain etc.
09-27-2011, 02:02 PM
#17
Rennlist Member
Court Decision re Insurance at the Track
I have personal knowledge of this claim so I thought it best that the salient points be brought out.
The insurance company did not contest on the basis of non-disclosure of the DE activity. One can only surmise that the facts indicated otherwise.
The insurance company requested and was supplied with appraisal every three years which included a full description of all modifications to the vehicle.
There was no clear precedent decision in Canada.
The insurance company decided to deny the claim on the basis that a DE event was nothing more than a race or speed test (which are specific exclusions in the standard Ontario Auto Policy) in disguise. To paraphrase the insurance company lawyer-The insured was on a race track at the time of the crash, what else could it be?
In April 2011 the Superior Court of Justice judgement awarded the insured the full appraised value of the vehicle less deductible plus substantial legal costs.
The insurance company appealed the decision to the Court of Appeal For Ontario which court upheld the original decision plus additional court costs. What is noteworthy here is that the three judge panel had obviously read and studied every page of the insurance company’s and insured’s submissions, and, gave the insurance company lawyer a real going over right from the start of the proceedings. The decision was read after a short recess. The insured’s lawyer did not have to make a presentation which in my view indicates that the insurance company’s arguments were really weak.
One big one for the small guy!
The insurance company did not contest on the basis of non-disclosure of the DE activity. One can only surmise that the facts indicated otherwise.
The insurance company requested and was supplied with appraisal every three years which included a full description of all modifications to the vehicle.
There was no clear precedent decision in Canada.
The insurance company decided to deny the claim on the basis that a DE event was nothing more than a race or speed test (which are specific exclusions in the standard Ontario Auto Policy) in disguise. To paraphrase the insurance company lawyer-The insured was on a race track at the time of the crash, what else could it be?
In April 2011 the Superior Court of Justice judgement awarded the insured the full appraised value of the vehicle less deductible plus substantial legal costs.
The insurance company appealed the decision to the Court of Appeal For Ontario which court upheld the original decision plus additional court costs. What is noteworthy here is that the three judge panel had obviously read and studied every page of the insurance company’s and insured’s submissions, and, gave the insurance company lawyer a real going over right from the start of the proceedings. The decision was read after a short recess. The insured’s lawyer did not have to make a presentation which in my view indicates that the insurance company’s arguments were really weak.
One big one for the small guy!
09-27-2011, 04:02 PM
#18
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8. Do not drive at anything near 10/10's at Mosport in your street car unless you can afford to take the flatbed home - riding in the passenger seat with Robin driving. She tells me so many stories of grown men crying while she drives them and the wreak home on the 401 that it's like something out of that TV show Scared Straight! Sad but true.
09-27-2011, 11:41 PM
#19
Drifting
I remember years ago (must be 15 at least) seeing a 944 Turbo go hard into the outside of 1. The driver was fine and walked back to the paddock while the car was being loaded up onto the flatbed... when the car was dropped in the paddock, he realized how bad the damage was, said his wife was going to kill him.. and fainted.
He came to as the red flag came out and the rescue guys got there. They transport anyway of course. Later on - simple fainting was the doctors call.
New rule: Never look back at your crashed car - keep walking!!
06-10-2013, 10:18 PM
#21
Race Car
Thread Starter
Update to this: Aviva appealed the decision and lost:
http://kentglowinski2010.wordpress.c...inski_ontario/
CITATION: Carnell v. Aviva Canada Inc., 2011 ONCA 313
DATE: 20110420
DOCKET: C53080
COURT OF APPEAL FOR ONTARIO
Winkler C.J.O, Lang and Karakatsanis JJ.A.
BETWEEN
Johan Carnell and Sandra Carnell
Applicants (Respondents)
and
Aviva Canada Inc. and Traders General Insurance Company
Respondents (Appellants)
Andrew Davidson, for the appellants
Bruce R. Jaeger, for the respondents
Heard: April 18, 2011
On appeal from the judgment of Justice Anne Mullins of the Superior Court of Justice, dated December 2, 2010.
APPEAL BOOK ENDORSEMENT
[1] We do not accept the appellants’ argument that the application judge’s single reference to the Statutory Conditions led to an error in her analysis. The Statutory Conditions and the policy exclusion at issue were identically worded. It was this identical wording that led the appellants to reference the cases decided under the Statutory Conditions.
[2] The application judge was clearly alive to the issue she was required to determine. In the first sentence of her reasons, she stated that the insured sought “a declaration determinative of the Applicant’s claim … pursuant to the terms of an automobile insurance policy.”
[3] Later, the application judge correctly described the rule of interpretation that “an insurance contract is … to be strictly and narrowly interpreted.” We do not accept this ground of appeal.
[4] We also do not accept the argument that the interpretation reached by the application judge was not available to her on the undisputed facts. The appellants particularly challenge the application judge’s conclusion that the respondent was not involved in a “speed test” and therefore was entitled to coverage under the policy. The application judge had before her evidence of the purpose of the Driver Education Programme in which the respondent was engaged, including its objectives such as establishing proper steering wheel control, use of mirrors, proper braking and cornering techniques, as well as understanding basic vehicle dynamics and car control. There was more than ample evidence for the application judge’s conclusion that the respondent was not engaged in a “race” or “speed test”, but in “exercising his driving skills in an environment, which was, by design and intended purpose, such as to challenge his skills and the performance attributes of his vehicle.” The purpose and objectives set out in the manual clearly support the application judge’s conclusion.
[5] The appeal is accordingly dismissed. Costs to the respondents in the amount of $5,000, inclusive of disbursements and applicable taxes.
http://kentglowinski2010.wordpress.c...inski_ontario/
CITATION: Carnell v. Aviva Canada Inc., 2011 ONCA 313
DATE: 20110420
DOCKET: C53080
COURT OF APPEAL FOR ONTARIO
Winkler C.J.O, Lang and Karakatsanis JJ.A.
BETWEEN
Johan Carnell and Sandra Carnell
Applicants (Respondents)
and
Aviva Canada Inc. and Traders General Insurance Company
Respondents (Appellants)
Andrew Davidson, for the appellants
Bruce R. Jaeger, for the respondents
Heard: April 18, 2011
On appeal from the judgment of Justice Anne Mullins of the Superior Court of Justice, dated December 2, 2010.
APPEAL BOOK ENDORSEMENT
[1] We do not accept the appellants’ argument that the application judge’s single reference to the Statutory Conditions led to an error in her analysis. The Statutory Conditions and the policy exclusion at issue were identically worded. It was this identical wording that led the appellants to reference the cases decided under the Statutory Conditions.
[2] The application judge was clearly alive to the issue she was required to determine. In the first sentence of her reasons, she stated that the insured sought “a declaration determinative of the Applicant’s claim … pursuant to the terms of an automobile insurance policy.”
[3] Later, the application judge correctly described the rule of interpretation that “an insurance contract is … to be strictly and narrowly interpreted.” We do not accept this ground of appeal.
[4] We also do not accept the argument that the interpretation reached by the application judge was not available to her on the undisputed facts. The appellants particularly challenge the application judge’s conclusion that the respondent was not involved in a “speed test” and therefore was entitled to coverage under the policy. The application judge had before her evidence of the purpose of the Driver Education Programme in which the respondent was engaged, including its objectives such as establishing proper steering wheel control, use of mirrors, proper braking and cornering techniques, as well as understanding basic vehicle dynamics and car control. There was more than ample evidence for the application judge’s conclusion that the respondent was not engaged in a “race” or “speed test”, but in “exercising his driving skills in an environment, which was, by design and intended purpose, such as to challenge his skills and the performance attributes of his vehicle.” The purpose and objectives set out in the manual clearly support the application judge’s conclusion.
[5] The appeal is accordingly dismissed. Costs to the respondents in the amount of $5,000, inclusive of disbursements and applicable taxes.
06-13-2013, 12:52 PM
#22
Instructor
Hey Christien - been a long time.
Thanks for posting this. I'm currently evaluating insurance options for my car, and so this is timely, and topical (at least for background). I'm not a huge DE guy, but it's something I expect to do at least periodically.
Is there/will there be any obligation to advise an insurance company of one's intent to use the car in DEs? From reading through these decisions, the company apparently has no way of refusing a claim based on participating in this format of event, but after losing the appeal, I would expect that the insurance sector will be busy working to offset any future costs associated the increased liability that these events may introduce.
The pay-out of the claim in this case was a big win - I'd be curious to know what the longer-term ramifications are to the driver....would the company drop coverage after the pay-out? Would he be saddled with insanely high premiums?
Cheers,
Dave
Thanks for posting this. I'm currently evaluating insurance options for my car, and so this is timely, and topical (at least for background). I'm not a huge DE guy, but it's something I expect to do at least periodically.
Is there/will there be any obligation to advise an insurance company of one's intent to use the car in DEs? From reading through these decisions, the company apparently has no way of refusing a claim based on participating in this format of event, but after losing the appeal, I would expect that the insurance sector will be busy working to offset any future costs associated the increased liability that these events may introduce.
The pay-out of the claim in this case was a big win - I'd be curious to know what the longer-term ramifications are to the driver....would the company drop coverage after the pay-out? Would he be saddled with insanely high premiums?
Cheers,
Dave
06-13-2013, 01:40 PM
#23
Rennlist Member
IMHO; if you tell them that you will be doing DE's they will cancel you
if you have a claim they will cancel you and premiums will be high in future from another company.
The pay out of "big win" simply covered the insureds costs to repair and for legal.
if you have a claim they will cancel you and premiums will be high in future from another company.
The pay out of "big win" simply covered the insureds costs to repair and for legal.
06-13-2013, 02:38 PM
#24
Race Car
Thread Starter
Yeah, I think was Danny said is spot-on. Consider your insurance to be your one-time get-out-of-jail-free card for a mishap at the track. They'll drop you, find any number of ways to not allow you back, and you'll be blacklisted - basically end up with facility insurance, which will be as much as $10k/year.
There's nothing in the Insurance Act or either of the court's decisions that says you have to inform them in advance. I think if you did advise them you'd be receiving a termination letter in the mail within a few days.
I don't think you should consider DEs at all when choosing your options for insurance coverage. Get a policy that covers you for everything else, and if something serious happens at a DE, cross that bridge when you come to it, knowing you'll have a massive fight in front of you, but one that you're almost guaranteed to win.
FWIW, when I had my off that resulted in the pic above, I paid out of pocket - never even considered an insurance claim. $1800 cash for a new signal housing and lens, panel repair (couldn't replace) and paint. Oh, and I got rid of the sh!tty Pirellis!
There's nothing in the Insurance Act or either of the court's decisions that says you have to inform them in advance. I think if you did advise them you'd be receiving a termination letter in the mail within a few days.
I don't think you should consider DEs at all when choosing your options for insurance coverage. Get a policy that covers you for everything else, and if something serious happens at a DE, cross that bridge when you come to it, knowing you'll have a massive fight in front of you, but one that you're almost guaranteed to win.
FWIW, when I had my off that resulted in the pic above, I paid out of pocket - never even considered an insurance claim. $1800 cash for a new signal housing and lens, panel repair (couldn't replace) and paint. Oh, and I got rid of the sh!tty Pirellis!
06-13-2013, 02:55 PM
#25
Rennlist Member
there was a company a while back I think "PIB insurance" and they cover you on track with a normal policy, they just want all your cars and home policy as well.
