Drive-thru operators beware: A double-double = an accident benefits claim?

The Court of Appeal for Ontario recently released a decision in a case that has far-reaching impacts. In Dittmann v. Aviva Insurance Company of Canada, an Ontario accident benefits claim was presented to the insurer, Aviva Canada, as a result of a scalding burn sustained on July 7, 2014 when a hot beverage ordered at a McDonald’s drive-thru spilled on the claimant causing significant injuries.

Rather than pursuing a commercial general liability claim for damages, a claim was presented to the automobile insurer for accident benefits claiming the incident qualified as an accident involving her motor vehicle.

Aviva Canada rejected the claim, determining that the incident did not meet the definition of “accident” under the Statutory Accident Benefits Schedule, Section 4 of the automobile policy. The definition of accident is outlined as:

An incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.

Robbie Gordon, Superior Court Justice, released his decision in October 2016, confirming that a nexus had been established between the initial incident and the operation of the vehicle. Justice Gordon determined that placing coffee or beverages in the designed automobile cup holder, was in fact, an expected or normal use of a vehicle.  As such, it could be anticipated that this may cause injury to an operator or occupant. He noted there were no intervening acts that interrupted the operation of the vehicle and, as such, Justice Gordon held that this incident did, in fact, meet the definition of “accident” as stated in the Schedule. This decision was upheld by the Court of Appeal of Ontario in July 2017.

It has now been confirmed that Aviva Canada has been granted leave to appeal to the Supreme Court of Canada. If the case is upheld, this will expand the accident benefits claims that may be accepted by insurers and, in Sedgwick’s business, our corporate clients. Further, it will also dramatically impact our clients that operate drive-thru operations. Claims presented for injuries could be deflected to the automobile insurance carrier. Because the decision is at the Supreme Court level, it will become a federal decision and could impact all of the provinces, not just Ontario.

It should be noted, insurers that fund accident benefits claims have no subrogation rights for recovery of these claims.

Risk managers beware: A double-double at the drive-thru may equal an accident benefits claim, not a general liability claim.

Lee-Anne Klawsuc, Claims Examiner – Liability, Sedgwick Canada  

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