s.268(2) of the Insurance Act
When claiming accident benefits, the occupant has first recourse to
the insurer of an automobile for which the occupant is a named
insured and the next recourse is to the insurer of the automobile in
which the claimant was an occupant, in accordance with s. 268(2) of
the Insurance Act.
s.66(1) of SABS
Under s.66(1) of the SABS regulation, an individual who is living and
ordinarily resident in Ontario shall be deemed a named insured under
the company automobile policy of the employer if, at the time of the
accident, the insured automobile is being made available for the
individual's regular use.
Since the accident occurred in the evening when the plaintiff was in
his friend's car, which was heading downtown, the court held that the
company car was not being made available to him at the time of the
accident. The court agreed with ACE's position that by adding the
phrase "at the time of the accident" and the word "being" next to the
phrase "made available", the legislature intended to extend coverage
to an individual where the insured vehicle was contemporaneously
available for regular use.
Conclusion
This decision illustrates the importance of determining the
circumstances of an accident and the availability of the company
vehicle at the time of the accident, when there is a priority dispute
between the insurer of the company car and the insurer of the vehicle
in which the claimant is an occupant. The occupant will only be
considered a named insured under the company automobile policy if the
company car was contemporaneously available for regular use at the
time of the accident. |