Mr. Smith suffered serious injuries in a single vehicle collision involving a rental car owned by Enterprise Rent-A-Car. Mr. Smith was a passenger in the car and the driver of Mr. Smith’s vehicle held her own insurance policy with liability limits of $1 million. Enterprise brought a summary judgment seeking to be released from the action, because Enterprise could not be liable for any amount over $1 million.
McLeish Orlando successfully defended the motion on behalf of Mr. Smith.
On October 16, 2012, Justice McCarthy of the Ontario Superior Court of Justice ruled that Enterprise was required to remain a party to the action. Justice McCarthy agreed with the plaintiff’s position that the 2006 amendments did not modify the applicable principles of vicarious liability or joint and several liability. Specifically, his honour made the following findings:
- Legal liability for the accident and legal liability to pay the claim are “distinct considerations.”
- Section 267.12 of the Insurance Act clearly contemplates the “continuing legal exposure” of a lessor for vicarious liability.
- The plaintiff clearly had a right of action in vicarious liability against Enterprise and that right of action was not displaced by the operation of section 267.12.
- The provisions of the Insurance Act did not prevent the plaintiff from maintaining an action against Enterprise.
The Smith decision is significant in that it establishes that rental companies must remain parties to an action despite the availability of other insurance. This is especially important to plaintiffs as there will still be an owner’s insurance policy available if the driver’s insurer denies coverage during the litigation. This ensures that the plaintiff will not be left without an insurance company to satisfy a judgment.
The full text of the decision may be found online at CanLii Smith v. Smith, 2012 ONSC 5872 (CanLII).