Today’s Ontario Reports contained an interesting duty to defend decision from February 2011. In Tut v. RBC Insurance, the applicant sought a declaration that the respondent RBC Insurance owed them a duty to defend the allegations of negligence made against them in two actions arising out of a car accident that occurred on June 23, 2007.
Nagraj Singh Tut was the driver of the car involved in the accident. His mother, the applicant Gurmeet Kaur Tut, was the owner of the car. After investigating the accident, RBC Insurance denied coverage to both applicants. It took the position with respect to Mr. Tut that he contravened the terms of his Class G2 driver’s license because he was driving with a blood alcohol concentration in excess of 0%. As a result, he was not authorized to drive when he drove his mother’s car and was involved in the accident. RBC took the position with respect to Mrs. Tut that she consented to her son driving that morning when she knew or ought to have known that he was not permitted by law to do so.
It was admitted that Mr. Tut did have a concentration of greater than 0% alcohol in his blood. Mr. Tut, along with his passengers, was hospitalized as a result of the accident. St. Michael’s Hospital laboratory blood test results show Mr. Tut to have had a blood alcohol concentration of 26.8mmol/L, or over one and a half times the legal limit for driving, roughly two hours after the accident. Mr. Tut had no recollection of the morning of the accident because of the injuries he sustained in it. He admitted to drinking the night before. He and a large number of his friends were at his parents’ home that night celebrating his 20th birthday. As planned, some of his friends spent the night. His parents were at the house only at the beginning of the party and the next morning.
Mr. Tut’s evidence was that he would never knowingly drive with a more than 0% blood alcohol concentration. His parents told him that he was not to drive after drinking. He relied on the fact that his mother approved of his taking the car after seeing and speaking with him that morning, and knowing of the regulation governing his license. She permitted him to drive in circumstances in which there were alternatives to his taking the car. This was consistent with neither of them realizing that he still had a greater than zero percentage concentration of alcohol in his blood.
The Application judge found that Mr. Tut had a reasonable and honest belief that he had 0% blood alcohol concentration when he awoke the morning after his party. On the basis of the evidence that warranted consideration of those who were at the party, Mr. Tut had a minimum of six hours sleep and possibly as much as nine hours that night. His belief that he was qualified to drive was a reasonable mistake of fact.
Accordingly, the judge found that RBC Insurance could not rely on the exclusion in the policy to deny him and his mother a defence.
In short, although the driver of the insured vehicle was driving it “when not authorized by law” (contrary to section 1.4.5 and statutory condition 4(1) of the policy), the insurer was not allowed to rely on the exclusion to deny the insured coverage. The facts in this case supported the insured, seeing that he had slept for several hours before driving – although it is hard to imagine how he could have felt sober (or believed that he had a BAC of 0%) with a blood alcohol concentration of 26.8mmol/L (roughly 0.12 BAC) some two hours after the accident.
