A B.C . Supreme Court judge says the Insurance Corporation of B.C. doesn’t have to cover the substantial costs of a rollover car crash in which a rented car landed in a water-filled ditch in Delta, resulting in injury, because the renter had let an impaired driver get behind the wheel.
The case of Janelle Nastasia Sherrell v. ICBC was heard in New Westminster, with Justice Gordon Weatherill presiding. Sherrell took the insurance corporation to court after it denied her coverage on the basis she’s breached her policy under Section 55(5) of the Insurance (Vehicle) Regulation by permitting someone impaired by drugs or alcohol to drive the car.
She lost her case.
The court heard Sherrell, 31, rented a 2013 Mazda from Hertz Canada on Sept. 15, 2014, after her 2000 Honda Civic was impounded for 30 days.
She had been a passenger in her own car.
Sherrell testified that she believed at the time the reason her car had been impounded was because the driver didn’t have a valid BC driver’s licence. “She testified that she had learned later that the vehicle had been impounded because the driver was impaired by alcohol,” Weatherill noted.
Ten days into the impoundment, she rented the Mazda and her insurance policy on her Honda was rolled over to cover the rental car.
On Oct. 5, 2014 she drove the Mazda to a friend’s home in Surrey, the court heard, where she “hung out” for about an hour before heading to her dad’s home in Delta, where she was living.
She testified she put her keys on a ledge inside the front door and then drank “at least six shots of Vodka,” threw up and blacked out. A group of friends had been there that night.
The court heard she drank until 4 a.m., when she and and a man named Vikramjit Singh Burgess headed out in the Mazda to buy two 26-0unce bottles of Vodka from an after-hours seller and returned home.
“She testified that she was intoxicated but that ‘Vik seemed to be fine’ and she permitted him to drive,” the judge noted. When they returned to her dad’s place, she said, she put the keys on the same ledge as before and in a short time downed about half of one bottle, straight from the bottle, until she was unconscious.
Sherrell testified she had no recollection of how much Burgess was drinking. Her next memory, she told the court, was waking up in the Mazda with Vik driving, seeing the speedometer at 160 km/h and then the Mazda hitting a ditch. Her then boyfriend, Jamie Ouellette, had been riding in the back seat and was injured in the crash.
Sherrell testified she had no recollection of getting into the car, where they were going and that Burgess “neither had her permission to drive the Mazda on that occasion nor had any standing permission to do so.”
Weatherill noted in his reasons for judgment that Burgess ultimately pleaded guilty to impaired driving causing bodily harm, that ICBC paid Ouellette $200,564.39 to settle his injury claim, and that ICBC has informed Sherrell it “intends to seek repayment of that amount from her.”
The court heard Sherrell gave a statement to Delta Police that “like I obviously shouldn’t have let him dr…drive that night.”
The constable asked her “do you remember a discussion of um, getting in the car, who was driving or anything like that when you, Jamie and um, Vik leave, just prior to the accident happening?”
The court heard she replied, “Yeah, he was, he was driving…and he had my keys…There was no way I was driving in that state. I had been drinking like all night.”
Weatherill found that ICBC “had established on the balance of probabilities that when the plaintiff permitted Vik to drive the Mazda, she knew he was intoxicated to the extent that he was incapable of operating a vehicle.”
Section 55(5) of the Insurance (Vehicle) Regulation states, under breach of conditions, that “An insured named in a certificate or additional product certificate must not permit the vehicle described in the certificate or additional product to be operated by a person or for a purpose that breaches a condition of this section.”
Meantime, ICBC revealed Thursday a net loss of $860 million in the first nine months of its current fiscal year, April 1 to Dec. 31, 2018, as litigated injury claims continue to escalate, and it is projecting a year-end net loss of $1.18 billion. The net claims incurred by ICBC for those first nine months were close to $5 billion, marking an increase of roughly $600 million over the same period the year prior.