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AUTOMOBILE INSURANCE - Accident benefits - Use or operation of motor vehicle

Monday, March 26, 2018 @ 11:15 AM  

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Motion by the defendants, Ronald and Laurie Zrobek, for a determination that the injuries of the plaintiff, Sherri Smith, constituted a bodily injury caused by an automobile. The plaintiff fell while exiting her motor vehicle. Her foot caught underneath a fence that the defendants had constructed on or near the property line which separated their respective properties. Smith commenced an action for damages against the defendants. Counsel for the defendants advised Smith that the alleged accident arose in circumstances in which Smith became eligible for Part 2 benefits under The Manitoba Public Insurance Corporation Act, and pursuant to s. 72 of the Act, no action could be brought against the defendants. The plaintiff applied to the Manitoba Public Insurance Corporation (MPI) but her claim was denied on the basis that her injuries were not the result of embarking from her motor vehicle, but rather were the consequence of getting her foot stuck in her neighbours' fence which caused her to fall. The plaintiff did not seek to review the decision, leading the defendants to bring their motion. The plaintiff argued that she did not sustain any injuries from the use of her automobile. MPI took the position that the court did not have jurisdiction to determine whether the Smith qualified for Part 2 benefits.

HELD: Motion dismissed. Where an action was between a plaintiff uninterested in making a claim under Part 2 of the Act, and a defendant who allegedly committed a tort which caused injury to the plaintiff, the court had jurisdiction to decide whether the plaintiff qualified for benefits under Part 2 of the Act when considering whether the action should be allowed to proceed. Smith had parked her automobile on her driveway, just before she tripped over the fence. She had reached her destination, she had climbed out of her automobile, and although she had not yet closed the door, nor extricated the children from the vehicle, she had both feet on the ground. The use of Smith’s automobile was only a fortuitous prelude to her sustaining injuries in the fall. Smith’s accident did not constitute a bodily injury caused by an automobile. There should be no coverage under Part 2 of the Act for her injuries. Smith could continue her action.

Smith v. Zrobek, [2018] M.J. No. 46, Manitoba Court of Queen's Bench, R.A. Dewar J., February 5, 2018. Digest No. TLD-March262018002