Off-road and in the courts – ‘Tis the season for snowmobile accidents, and insurance questions

In a vast, often snowy country such as Canada it is no surprise that off-road vehicles are so popular — chief among them, the snowmobile. Unfortunately, each winter also brings with it snowmobile accidents resulting from the numerous inherent dangers associated with this popular recreational pastime. On average, Public Health Ontario statistics show that over 40 people visit emergency rooms across the province for snowmobile-related injuries per week, the majority of which are serious and often “catastrophic.” Accordingly, it is crucial to understand the levels of insurance coverage that may be available to an injured rider.

Pursuant to the Motorized Snow Vehicles Act, R.S.O 1990, c. M.44, snowmobiles must be insured in the same manner as any other motorized vehicle which is used upon a highway. Therefore, the typical snowmobile insurance policy is the same as the standard automobile insurance policy, and an injured driver is entitled to the same benefits and protection that would also be available in the event of an automobile accident, such as things like access to Statutory Accident Benefits and uninsured and/or unidentified motorist protection coverage.

While many snowmobile accidents occur when a driver is riding along trails that weave in and out of forested areas, across bodies of water or coming into contact with other riders who are often inexperienced, driving too quickly, or under the influence of alcohol, there are cases that may arise out of circumstances that are not akin to what may be considered the normal “ownership, use or operation” of a snowmobile, a standard phrase found in automobile coverage provisions.

In McLean (Litigation Guardian of) v. Jorgenson [2005] O.J. No. 5207, the Court of Appeal for Ontario addressed the issue of whether an insurer had the duty to defend an action commenced by a plaintiff who suffered a below-the-knee amputation while he was holding the rear end of a snowmobile off the ground as another person revved the engine in hopes that it would start better. The defendants looked to their automobile insurer, TD General Insurance Company, to defend the action. TD denied coverage.

The court followed the three principles relating to the duty to defend :

(a) a duty to defend, as distinct from the duty to indemnify, is triggered by the mere possibility that the claim could succeed;

(b) in relation to motor vehicle claims, the duty to defend arises from the “ownership, use or operation of the motor vehicle”; and,

(c) because there may be concurrent actions in tort it is possible that one insurer may be liable to defend an action and another to indemnify.

The deciding principle in this case was whether the plaintiff’s injuries arose from the ownership, use or operation of the snowmobile. The court applied the two-part test found in Amos v. Insurance Corp. of British Columbia [1995] S.C.J. No. 74, which states:

1. Did the accident result from the ordinary and well-known activities to which automobiles are put?
2. Is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the appellant’s injuries and the ownership, use or operation of his vehicle, or is the connection between the injuries and the ownership, use or operation of the vehicle merely incidental or fortuitous?

There was no dispute over the fact that the plaintiff’s injuries arose out of the operation of the snowmobile, as attempting to start a motor vehicle is an ordinary and well-known activity. While there was some argument over whether having a person lift the rear of a snowmobile while it is being started is such, the court concluded that the act of lifting the rear of the snowmobile could not be viewed in isolation and found that, in this case, it was inextricably linked to starting and revving the engine.

Another component of claims involving snowmobiles revolves around the use of snowmobile trailers. A significant body of jurisprudence has developed which focuses on the question of whether homeowner’s insurance coverage extends to cover accidents arising out of the use and operation of a trailer. For example, inHealy v. Blake [2000] O.J. No. 1475, the court applied the “use and operation of a motor vehicle” exclusion found in a homeowner’s policy to prevent a plaintiff from recovering for injuries resulting from a motor vehicle accident involving a homemade trailer. Conversely, in Gramak Ltd. et. al. v. State Farm Mutual Automobile Insurance Co. [1975] O.J. No. 2513, when assessing insurance coverage, the court extended the phrase “use” to include the act of negligently drilling a hole through a car trunk in order to attach a travel trailer.

In light of the various permutations giving rise to snowmobile injuries it is imperative that lawyers be informed of the various coverage limitations and exclusions within the various motor vehicle and homeowner’s insurance policies, especially given more customized forms of insurance available since the 2010 automobile insurance amendments, and the significant number of catastrophic injuries which occur each year.

Stacey Stevens is a partner with Thomson Rogers in Toronto.