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CIVIL PROCEDURE - Trials - Jury trials - Verdicts

Tuesday, January 09, 2018 @ 11:08 AM  


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Appeal by a motorist from the dismissal of her claim for damages for injuries sustained in a motor vehicle accident under the unidentified driver coverage in her policy. The appellant was involved in a motor vehicle accident in November 2008. She claimed that an oncoming vehicle crossed the centre line and she was required to swerve to avoid a collision. She lost control of her vehicle and rolled into a ditch. As a result of the accident, she suffered injuries to her neck, shoulders back and right knee. As the other driver did not stop and was not identified, the appellant commenced an action against her own insurer for coverage under the unidentified motorist coverage in her policy. One of the appellant’s passengers testified and corroborated the appellant’s version of events. The insurer called no evidence on liability, but took the position that there was no unidentified driver or, if there was, it did not cross the centre line. The jury determined that the negligence of an unidentified driver did not cause or contribute to the accident. As a result, the appellant’s claim was dismissed. However, the jury also found that the appellant’s evidence of an unidentified driver was corroborated. The appellant appealed the dismissal of her claim on the grounds that the jury verdict was inconsistent.

HELD: Appeal dismissed. By its answer to the question of whether the appellant’s version was corroborated, the jury must have rejected the insurer’s position that there was no unidentified car and instead concluded that an unidentified car was there and was involved in the accident. However, by its answer to the question about whether the negligence of the other driver caused or contributed to the accident, the jury must have disbelieved the appellant and her passenger when they said that the unidentified vehicle crossed the centre line. Because the jury did not find the other driver negligent, the verdicts were not inconsistent. The trial judge’s charge to the jury was adequate and was not biased or unfair. The charge to the jury captured the appellant’s duty in an emergency situation. While it would have been preferable for the judge to have expressly charged the jury on the shifting burden of proof based on the allegation that the unidentified driver crossed the centre line, the instruction was not asked for at trial and the trial judge’s actual instruction conveyed the essence of the parties’ positions. Furthermore, while some of the conduct of the defendant’s counsel was inappropriate, the judge adequately addressed the plaintiff’s concerns.

Montepeque v. State Farm Mutual Automobile Insurance Co., [2017] O.J. No. 6401, Ontario Court of Appeal, J.I. Laskin, K.N. Feldman and R.G. Juriansz JJ.A., December 7, 2017. Digest No. TLD-January82018003