By Matt Lalande in Car Accidents on April 17, 2021
Well, actually you can sue your dad. You can do whatever you want so long as you have legal representation if you’re under 18.
Normally we don’t take any deep dives into legal cases, but this case was quite interesting. Also, the case was argued by our good friend Ted Key, from the law firm of Agro Zaffiro in Hamilton. Ted is often our opposing counsel on cases, but he is also a local colleague and a lawyer whom we respect tremendously.
Also, this case wasn’t so much about a kid suing her dad, but whether an insurance company “would defend” her dad after being sued by his minor daughter. You can read the full written decision of Hunt v. Peel Mutual Insurance Company here.
On July 20, 2014 a Mr. Hunt was a front seat passenger in a car.
The car was driven by his girlfriend, Ms. Dingman.
Mr. Hunt’s daughter, Amealia Lewis, was in the backseat.
The car was involved in what was presumably a head-on crash, and little Amealia was hurt.
It was found that the driver, Ms. Dingman was impaired at the time of the crash and at fault for the crash, after entering into the oncoming lane of traffic.
Because she was hurt, Amealia sued Ms. Dingman, as expected, for compensation.
But, interestingly she also sued her father. The lawsuit was framed in a theory called “negligent parenting.”
Little Amelia alleged that her father was negligent in permitting her to be transported in the car, driven by an impaired driver, a car in which her father was also an occupant. Seems reasonable.
The theory of negligent parenting is real, but in our practice, negligent parenting is almost always used in the defence of claims.
An example could be if you have a young child, and you allow your young child to cross the road on his own to fetch the mail at dawn – and sadly, that child is struck by a car.
What happens then?
Well, minor children generally are not held to the same standard of care as an adult. Children are expected to exercise the care of an average child of his or her age, experience and stage of mental development. When mom and dad sue the driver of the car that struck the young child crossing the road, that driver’s insurance company may raise contributory negligence on the part of the parents, meaning that they were negligent parents in allowing their young child to cross the road during darkening hours to fetch the mail, knowing that their young child might not exercise appropriate care for his own safety because of his young age. In short, they should have known better. Seems reasonable.
In this case, the facts were reversed. Little Amealia, as a plaintiff, sued her dad because he allowed her to get into a car with a drunk driver, putting her safety at risk. She alleged that because he permitted her to get into the car with a drunk driver, he was a negligent parent. Again, seems reasonable.
The question the Court was asked to answer was whether or not Mr. Hunt would be considered an “insured person” because he was an occupant in his girlfriend’s car. In other words, should Ms. Dingwall’s car insurance policy respond to little Amelia’s claim for compensation against her dad for negligent parenting, because her dad was an occupant in the car at the time of the crash?
The case was argued and appealed. The Court of Appeal found that no, Peel Mutual, the girlfriend’s insurance company, was not required to defend dad against his daughter’s negligent parenting claim. He was unfortunately on his own. The court said that dad was not sued because of his use or operation of the vehicle he was a passenger in, but rather because of negligent parenting – he allowed his daughter to be involved in a dangerous situation, which had nothing to do with the use or operation of his girlfriend’s car.
The Insurance Act is the primary legislation governing and regulating all registered insurance companies in Ontario. There is a section in the Insurance Act that deals with this exact issue. Section 239(1), the applicable section, provides in relevant part, as follows:
S.239 (1) Subject to section 240, every contract evidenced by an owner’s policy insures the person named therein, and every other person who with the named person’s consent drives, or is an occupant of, an automobile owned by the insured named in the contract and within the description or definition thereof in the contract, against liability imposed by law upon the insured named in the contract or that other person for loss or damage rising from the ownership or directly or indirectly from the use or operation of any such automobile; and resulting from bodily injury to or the death of any person and damage to property. R.S.O. 1990, c. I.8, s. 239 (1).
With this in mind, the Court of Appeal was asked whether the facts and allegations of the negligent parenting case against him, brought him within the definition of an insured person. It was determined that this provision above made it clear that to be covered, an occupant’s (Dad’s) liability must be for loss or damage arising from the use or operation of the automobile.
Even though Amealia’s injuries arose from the use of a vehicle, Dad’s liability for her loss or damage does not. His liability is alleged to arise from negligent parenting, not from anything he did or did not do as an occupant connected to the use or operation of the automobile.
As lawyers who represent only victims – this was a very commendable and innovative argument – once which we have never seen.
However, we would also say that the Court of Appeal properly interpreted the relevant section. Ms. Dingman’s insurance company should be liable to pay compensation for little Amealia’s injuries since yes, she was impaired, caused and accident and hurt the little girl.
However the fact that dad negligently put his daughter in the back seat of a car driven by an impaired driver is another story – since dad’s negligence as a parent did not involve anything that he did or did not do as an occupant connected to the use or operation of his girlfriend’s car that day.
Matt Lalande has been representing victims families of victims, since 2003. If you or a loved one has suffered serious life-changing injuries caused by a drunk driver, call us today. We are car accident lawyers based in Hamilton, but serve victims province wide. You can reach 24/7 at 1-844-LALANDE or by calling us local in the Hamilton/GTA at 905-333-8888. Alternatively, you can send us an email through our website confidentially and we will get back to you very shortly.
LALANDE PERSONAL INJURY LAWYERS – HAMILTON OFFICE
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905-333-8888
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