“Transmission of force” doctrine applied in priority dispute

The “transmission of force” doctrine did not apply to a motor vehicle that collided with a second motor vehicle, thereby diverting the second vehicle, which then hit a pedestrian.

Automobile insurance – Benefits – Statutory provisions – Statutory Accident Benefits Schedule – Priority coverage – Leave to appeal – Standard of review

Unifund Assurance Co. v. ACE INA Insurance Co., [2017] O.J. No. 3172, 2017 ONSC 3677, Ontario Superior Court of Justice, June 20, 2017, C.J. Brown J.

A pedestrian was struck in an accident involving three motor vehicles. The pedestrian applied for Statutory Accident Benefits (“SAB”) through one of the vehicle’s insurers, The Personal Insurance Company (“Personal”).  An arbitration proceeding took place to determine which of the three insured vehicles should cover the pedestrian’s claim on the basis that one of the vehicles was highest in priority pursuant to section 268(2)(2) of the Insurance Act, RSO 1990, C I.8 (“Insurance Act”).  The accident occurred when a vehicle insured by ACE INA Insurance (“ACE”) was proceeding eastbound and collided with a vehicle insured by Unifund Assurance Company (“Unifund”), travelling westbound on the same street and attempting to turn left.  As a result of the impact, the ACE vehicle was diverted, continued under its own propulsion, and struck the pedestrian.  The Unifund vehicle then struck a vehicle insured by Personal.  In concluding that the “transmission of force” doctrine applied, the arbitrator found that, for the purpose of the Insurance Act, the Unifund vehicle became the vehicle that struck the claimant.  As such, Personal was entitled to reimbursement of the claimant’s SAB from Unifund, but not ACE.

The arbitrator’s decision was successfully appealed. On appeal, the Court found that the accident involved two moving vehicles, which collided, causing the ACE vehicle to be diverted and strike the pedestrian.  The ACE vehicle, while deflected by the collision, continued under its own propulsion or “independent force”.  It was not the Unifund vehicle that applied the transmission of force to the ACE vehicle propelling it into the claimant, but rather the ACE vehicle’s own, albeit diverted, movement. Accordingly, ACE was the highest priority and was responsible for payment of the pedestrian’s SAB.

This case was digested by Kora V. Paciorek and edited by Steven W. Abramson of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact them directly at kpaciorek@harpergrey.com or sabramson@harpergrey.com or review their biographies at http://www.harpergrey.com.

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