In D’Andrea v. Economical Mutual Insurance Company, 2022 ABCA 337, an insurance company, Economical, appealed a trial decision that awarded the insured plaintiff (the “Insured”) coverage under her SEF 44 policy for being struck by her own vehicle that was in the process of being stolen.
The Insured was injured when she attempted to stop someone from stealing her car. She ran towards the car and leaned into the open window. She was dragged for about 40 feet before falling off. As the vehicle was being used without her consent, the Insured’s coverage under her SEF 44 endorsement depended on her being “struck” by the vehicle while not being an “occupant”.
The SEF 44 endorsement provided that “no person shall be entitled to indemnity or payment under this Policy who is an occupant of any automobile which is being used without the consent of the owner thereof”. An “occupant” was defined in the policy as “a person driving, being carried in or upon or entering or getting on to or alighting from an automobile”.
Economical argued that the Insured was an “occupant” of the vehicle because she was getting into the automobile or was being carried by it. The trial judge determined that the Insured was attempting to get the attention of the thief and did not intend to get in the vehicle. Being carried upon, as a criterion for being an occupant under the policy, was not found to include the act of being dragged beside the vehicle. The Court of Appeal agreed that this was a justifiable application of the wording in the policy to the facts.
The SEF 44 endorsement further included coverage for the named insured if they were “not an occupant of an automobile who is struck by an automobile”. The trial judge found that the Insured being dragged by the vehicle where the driver was veering and accelerating was struck by that vehicle in some fashion. The Court of Appeal agreed that this was a reasonable meaning of the word “struck” in this context. The trial judge was open to find that the striking occurred when the vehicle was set in motion, veering and accelerating.
The appeal was ultimately dismissed concluding that the Insured was covered under her SEF 44 endorsement as the Insured was not an occupant of the vehicle that was being used without consent, and the Insured was struck by the vehicle.
