Published In: Insurance Law 10.Nov.20 November 10, 2020

Case Summary: Insured driver’s failure to take steps to ascertain the negligent driver’s identity may have been reasonable

An insured driver’s failure to take steps to ascertain the negligent driver’s identity after being struck and prior to the driver fleeing the scene may have been reasonable in the circumstances and is a triable issue.

Insurance law – Automobile insurance – Unidentified motorist – Damages – Practice – Summary judgment v trial

Lamb v. Co-operators General Insurance Co., [2020] O.J. No. 3492, 2020 ONSC 4955, Ontario Superior Court of Justice, August 19, 2020, J. Stribopoulos J.

The insured commenced an action for damages she suffered when an unidentified motorist struck her as she drove her electric scooter through the parking lot to meet her husband at a restaurant. After being hit, she fell to the ground, and lay there in shock. The insured’s husband rushed to her aid. The driver exited his vehicle and surveyed the damage to his car. The insured was assisted to a chair inside the restaurant by her husband, where she received ice for her leg. Within a couple of minutes, the insured’s husband returned to the parking lot, where he discovered the driver of the vehicle had left.

The insured sued the unidentified motorist and her insurer. The policy covered the insured for bodily injuries she suffered if struck by an “unidentified automobile,” which means any other automobile where “the identity of either the owner or driver cannot be ascertained.”

The insurer brought a motion for summary judgment, arguing that coverage does not apply where the insured could have ascertained the driver’s identity through reasonable means. The insurer argued that the insured had “every opportunity” to identify the vehicle owner.

The insured argued that she did not unreasonably fail to identify the driver or record his license plate because she was in shock after being struck and injured, and because the driver quickly left the scene.

The Court considered whether there was a triable issue concerning the insured’s reasonableness with respect to failing to identify the driver or record his license plate. The Court found that there was a triable issue, considering that the insured did not have a real opportunity to ascertain the driver’s identity because of her physical and emotional condition after being struck and the driver’s decision to flee the scene within minutes. The insurer’s motion was dismissed.

This case was digested by Erika L. Decker, and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Insurance Law Newsletter. If you would like to discuss this case further, please contact Erika L. Decker at