Individual dragged from car window not ‘occupant’ of vehicle: Alberta Court of Appeal

A woman who was dragged from a car window in an attempt to stop a car thief was not an occupant of the vehicle for insurance purposes, the Alberta Court of Appeal has ruled.

In D'Andrea v. Economical Mutual Insurance Company, 2022 ABCA 337, Teresa D’Andrea suffered injuries when she tried to stop someone from stealing her car. She leaned into the open car window and was dragged by the moving vehicle until she fell off.

D’Andrea’s automobile insurance policy coverage depended on her being “struck” by the vehicle while not being an “occupant” of the vehicle.

D’Andrea claimed she was entitled to coverage under the terms of the SEF 44 endorsement. Economical Mutual Insurance Company, however, denied coverage, alleging that D’Andrea was an “occupant” of the vehicle at the time of the incident.

The trial judge found that D’Andrea was entitled to coverage since she was not an “occupant” of the vehicle, but that she was “struck” by it. Economical Insurance appealed, asserting that she was an “occupant” because she was being “carried” by the vehicle.

The appellate court disagreed.

“Being carried upon” or dragged not the same as “occupant”

Read together, the policy “[denies] coverage to anybody who is driving the vehicle without the consent of the owner and anybody who, with that person, is an occupant of the vehicle,” said the court.

The trial judge found that D’Andrea was merely attempting to get the attention of the thief and did not “get into” the car while it was under the control of an unknown third person. This finding was entitled to deference on appeal.

Further, the appellate court ruled that “being carried upon” cannot be interpreted to include being dragged beside a vehicle. To illustrate this boundary, when a pedestrian was run over by a vehicle and dragged for some time, it cannot be said that the pedestrian was being “carried upon” by the vehicle, said the court, adding that these findings were entitled to deference.