Motorists tasked with proving physical contact in collisions with unidentified vehicles

Published: May 29, 2018

Updated: July 24, 2018

Author: Luke Jones

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Alberta lawmakers are continuing to be divided on whether victims must prove contact after being hit by an unidentified vehicle. The Court of Appeal in the province says motorists involved in a collision with an unidentified vehicle must prove “physical contact”.

Additionally, the appeals court says some evidence of an unknown vehicle must be presented in such cases. The decision overturned a previous lower court ruling and shows judges in the province are divided on the matter. Under the first decision, the court ruled the Family Protection Endorsement of Alberta auto insurance policy is in conflict to public policy due to a lack of coverage for motorists who avoid collisions.

Even the Court of Appeal was divided, returning a split decision on May 25 but ruled in favour of Wawanesa Mutual Insurance Company. The result overturned a 2017 Court of Queen’s Bench ruling after the insurance company has requested courts to dismiss a claim from one of its customers, Andrew Funk.

Funk suffered injuries due to rolling his vehicle in Edmonton during 2008. He said he left the road to avoid an oncoming car that would have caused a head-on collision. The other vehicle in the incident was unidentified. Funk argued the Family Protection endorsement he bought from Wawanesa covered him as it is intended to protect motorists from incidents with unidentified or uninsured vehicles.

He received $200,000 from Alberta’s Motor Vehicle Accident Claims Fund, but Funk wants more damages through the claim. Justice Frans Slatter and Patricia Rowbotham of the Court of Appeal wrote there must be “physical contact with the unidentified automobile,” and the insured must also “provide independent corroborating evidence of the involvement of that unknown vehicle.”

“The approach of stepping around the terms of an insurance policy on the basis of ‘unjust or unreasonable’ terms, ‘public policy’, or ‘relief from forfeiture’ runs the risk of throwing any semblance of certainty out the window,” wrote Justices Slatter and Rowbotham. “While these concepts are recognized in law, they must be applied with caution with respect to standard form, statutorily mandated insurance policies.”