Insurance law – Automobile insurance – Ownership, use or operation of motor vehicle – Statutory provisions

Prosofsky v. Insurance Corp. of British Columbia

An accident involving the unloading of an ATV from a truck is found to arise out of the use and operation of a motor vehicle.

2016] B.C.J. No. 1829

2016 BCSC 1586

British Columbia Supreme Court

August 29, 2016

H. Hyslop J.

The insured sought reinstatement of rehabilitation benefits that had been cut off by the insurer. The issue was whether the insured was injured in an accident that arose out of the use and operation of his pickup truck.

The insured used his pickup truck to transport an ATV from place to place. To assist him in loading and unloading the ATV, the insured purchased a three‑piece aluminum ramp system which was attached to the pickup truck. On the day of the accident, the insured left his home in the pickup after having loaded the ATV into the box of the pickup. When he arrived at his destination, the insured set up the ramp, climbed into the box of the pickup, and mounted the seat of the ATV. He did not start the engine, but rather placed it in neutral and using the brake, began to ease it down the ramp towards the ground. After the rear wheels of the ATV made contact with the ramp, an underinflated tire became caught in the ramp causing the front end of the ATV to rise up and the insured and the ATV to fall to the ground. The insured was seriously injured.

The Court concluded the insured was not driving or operating the ATV in the way it was intended. Rather, he was unloading it from the truck. He was not on a highway or off‑road. The insured was an occupant of his pickup truck and was transporting his ATV intending to use it for its recreational purpose. Instead, as he was unloading the ATV, he was injured. He was not an occupant of the ATV nor was he driving or operating it when he was injured as is contemplated by the Regulation.

This case was digested by Cameron B. Elder and edited by David W. Pilley of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact them directly at celder@harpergrey.com or dpilley@harpergrey.com or review their biographies at http://www.harpergrey.com.