Case-Comment-McEvoy-vs-McEachnie-Insurance-Law-Bulletin-January-2009

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INSURANCE LAW BULLETIN Insurance Law Issue 1 • January 2009 CASE COMMENT: MCEVOY V. MCEACHNIE, 2008 BCSC 1496 On November 4, 2008, the Supreme Court of British Columbia released its decision in McEvoy v. McEachnie, 2008 BCSC 1496 and ruled that the defendant, William Forster, had consented to Robyn Carly McEachnie, a Contributors in this complete stranger, operating his vehicle on June 20, 2004. issue: Mr. Forster’s 2000 Jeep TJ crashed into a ditch that evening. Three of the four passengers sued for injuries they claim Robert B. Swift were caused by the accident. 604.643.2974 [e-mail] Mr. Forster had given his daughter, Stephanie Forster, day-to-day control of the Jeep. The title to the Jeep remained Davis LLP’s Insurance Diana L. Dorey in his name. Mr. Forster made it clear that only she was to Law practice group has 604.643.2919 extensive experience in [e-mail] drive the vehicle, and that she should never drink and drive. handling complex insurance Stephanie and Robyn spent the evening of June 20, 2004 defence claims. Many of our Karen Leung lawyers are seasoned in a bar with friends. When Stephanie became intoxicated, 604.643.2924 litigators that are [e-mail] Robyn became the evening’s designated driver. Two friends experienced at all levels of court and are pioneers in were also offered a ride. At no point did anyone ask Mr. alternative dispute resolution Forster if Robyn ...

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• Publié par: Fewyar
• Nombre de lectures: 33
• Langue: English

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BULLETIN

Insurance Law

Issue 1 • January 2009

Contributors in this

issue:

Robert B. Swift

604.643.2974

[e-mail]

Diana L. Dorey

604.643.2919

[e-mail]

Karen Leung

604.643.2924

[e-mail]

Davis LLP

’s Insurance

Law practice group

has

extensive experience in

handling complex insurance

defence claims. Many of our

lawyers are seasoned

litigators that are

experienced at all levels of

court and are pioneers in

alternative dispute resolution

including arbitration,

mediation and negotiation.

Our Group draws upon the

depth and breadth of our

full-service firm when

handling cases and advising

clients. We offer our clients

a team approach to find

creative solutions that allows

cases to be resolved in a

cost- effective manner.

INSURANCE LAW

© Davis LLP, 2009

Page 1

CASE COMMENT:

MCEVOY V.

MCEACHNIE, 2008 BCSC 1496

On November 4, 2008, the Supreme Court of British

Columbia released its decision in

McEvoy v. McEachnie

,

2008 BCSC 1496 and ruled that the defendant, William

Forster, had consented to Robyn Carly McEachnie, a

complete stranger, operating his vehicle on June 20, 2004.

Mr. Forster’s 2000 Jeep TJ crashed into a ditch that evening.

Three of the four passengers sued for injuries they claim

were caused by the accident.

Mr. Forster had given his daughter, Stephanie Forster,

day-to-day control of the Jeep. The title to the Jeep remained

in his name. Mr. Forster made it clear that only she was to

drive the vehicle, and that she should never drink and drive.

Stephanie and Robyn spent the evening of June 20, 2004

in a bar with friends. When Stephanie became intoxicated,

Robyn became the evening’s designated driver. Two friends

were also offered a ride. At no point did anyone ask Mr.

Forster if Robyn could drive the Jeep.

The accident occurred shortly after Robyn negotiated a

left curve and the Jeep accelerated in speed.

Stephanie was found to have caused the accident. As a

consequence of her impairment, she negligently grabbed the

steering wheel and the Jeep swerved off the highway. Robyn

was not negligent. None of the other passengers contributed

to Stephanie’s negligence.

Rogers J., of the Supreme Court, concluded that

Stephanie was indeed “driving or operating the motor

vehicle” within the meaning of section 86(1) of the

Motor

Vehicle Act

, R.S.B.C. 1996, c. 318 (the “

Act

”) when the Jeep

crashed into the ditch.

Mr. Forster, of his own free will, turned over the Jeep’s

keys to Stephanie. Similarly, Stephanie freely gave the keys

to Robyn. Notwithstanding Mr. Forster’s clear restriction

that only Stephanie was to drive the Jeep, he expressly or

impliedly consented to Robyn’s operation of the vehicle.

Rogers J. found that he also expressly consented to

Stephanie’s operation of the Jeep, notwithstanding she was

drunk and thus in violation of another of his restrictions.

© Davis LLP, 2009

Page 2

.

Mr. Forster imposed restrictions on the use

of the Jeep to ensure the safety of his daughter

and the vehicle. Rogers J. concluded that Mr.

Forster would have consented to whatever

Stephanie used the Jeep for so long as that use

was aimed at accomplishing one or both of those

goals. The decision to have Robyn drive met

both of Mr. Forster’s goals, and he was found to

have impliedly consented to her possession of

the Jeep.

Mr. Forster was found liable for Stephanie’s

negligence pursuant to section 86(1) of the

Act

.

In short, this decision does not change the

law of vicarious liability with respect to car

leasing and car rental companies in British

Columbia.

The decision confirms that result in

Morrison (Committee of) v. Cormier Vegetation

Control Ltd.

, [1996] B.C.J. No. 2601 (C.A.), and

in

Barreiro v. Arana

, 2003 BCCA 58, in that so

long as the transfer of car keys from the owner

to the second party is done by the free exercise

of the owner’s will, and the second party freely

gives the third party the keys, the owner has

consented within the meaning of section 86(1)

of the Act to the third party’s possession and use

of the vehicle, and is liable for the second

party’s and third party’s actions.

The question of consent is an important one

where the owner is exposed to vicarious liability

for the negligence of its driver.

Without

consent, the owner is not vicariously liable for

the driver's negligence.

We expect the Court of

Appeal will be asked to reconsider the issue of

whether the father's consent was vitiated in the

circumstances of this case, and whether it is

reasonable to hold the father vicariously liable

for his daughter's driving negligence given the

restrictions he had imposed on her usage of the

vehicle.

For these reasons this case is of interest

to the automobile leasing industry and we will

continue to monitor its progress.

Please click here to link directly to the

McEvoy

v.

McEachnie

decision:

http://www.canlii.org/eliisa/highlight.do?langua

ge=en&searchTitle=Search+all+CanLII+Databa

ses&path=/en/bc/bcsc/doc/2008/2008bcsc1496/

2008bcsc1496.html

.

For more

information please

contact:

Robert B. Swift

604.643.2974

[e-mail]

Diana L. Dorey

604.643.2919

[e-mail]

Karen Leung

604.643.2924

[e-mail]