IN THE SUPREME COURT OF NOVA SCOTIA Citation: Jones v. LeBlanc, 2006 NSSC 131 Date: 20060426 Docket: S. P. No. 191874 Registry: Pictou Between: Deborah Jones, Reginald Brightman, Alicia Hartling, an infant, through her Litigation Guardian Carol Hartling, John Hartling, Diane Hartling, Edward Hartling, James Lawrence and Sharon Lawrence v. Joseph Gerard LeBlanc and Wawanesa Mutual Insurance Company Defendants Judge: The Honourable Justice Charles E. Haliburton Heard: April 4, 2006, in New Glasgow, Nova Scotia Written Decision: April 26, 2006 Counsel: Jamie MacGillilvray, for the Plaintiffs John Kulik, for the Facility Association for and on behalf of the Defendant LeBlanc Robert M. Purdy, Q. C. for the Defendant, Wawanesa Mutual Insurance Company By the Court: [1] All issues in this proceeding have been settled except to determine liability between Wawanesa Mutual Insurance Company and the Facility Association for psychological injury suffered by Alicia Hartling. [2] An Agreed Statement of Facts has been filed by the parties and now set it forth: 1. This action arises out of a motor vehicle / bicycle accident whichoccurred on June 27, 2002. The late Jonathan Hartling was driving his bicycle on the road when he was struck from behind and killed. 2. The Plaintiff Alicia Hartling was Jonathan Hartling’s cousin. She was present, although she did not suffer any physical injuries and was not directly involved in the accident, she commenced this action to advance a claim for nervous shock. It is admitted that the Plaintiff is entitled to recover damages for nervous shock from the Defendant LeBlanc. 3. Since the Defendant LeBlanc was an uninsured motorist at the time of the accident, the Plaintiff’s claim against LeBlanc is being defended by the Facility Association which maintains the Uninsured Motorist Claims Fund for Nova Scotia. 4. The Plaintiff claims against the Defendant Wawanesa Mutual Insurance Company pursuant to the Section D Uninsured Automobile Coverage provisions of policy number 0875153 issued by Wawanesa to Reginald Brightman, the step-father of the Late Jonathan Hartling. 5. Jonathan Hartling was “person insured under the contract”. 6. Alicia Hartling was neither resident of nor dependant of the Brightman household, therefore, it is agreed that the Plaintiff Alicia was not “person insured under the contract”. 7. The Plaintiff’s claim has been settled between the parties. The trial of this matter was held at New Glasgow on April 4th, 2006 for argument only. The Plaintiff did not participate and has no interest of the outcome, the Facility Association and Wawanesa having together settled her claim. psychological report on file discloses another fact that might have affected Alicia’s emotional well being. It says “Alicia recounts that she saw Jonathan’s bike flying past her and that she stopped and “looked everywhere for Jonathan but could not find him”. In panic, she rode down to her house to find her father and then they both returned to the accident site to look for Jonathan. Jonathan was found about 100 feet away from where he was hit. It was subsequently determined he was dead.” ISSUE [3] Do the Section D provisions of the M/V Insurance policy issued by Wawanesa extend to protect Alicia Hartling, who suffered psychic injury as a result of the “injury or death” of Jonathan Hartling, an “insured person” under the policy? [4] It is Section 139 of the Insurance Act, R.S.N.S. 1989, c. 231 that mandates what is known as “Section D” coverage in all M/V insurance contracts. Disposing of the issue between the two Insurers requires an interpretation of that section and an analysis or characterization of the claim. It is common ground that if Ms. Hartling had suffered physical injury as direct result of the negligence of the uninsured LeBlanc then the Facility Association would have been obliged to respond. Unlike her cousin Jonathan, she is not “person insured under the contract” and hence her physical injuries and the claim arising therefrom would not be actionable under the Wawanesa policy. [5] It is submitted on behalf of Wawanesa that Section 139 (2) (b) provides for recovery against the Section Insurer in the present circumstances by only that class of person’s who are entitled to recover under the Fatal Injuries Act (that is close relatives). It is those persons who are entitled to recover damages for “the death of person insured”. Such claim, it is argued, arises through the death of Jonathan Hartling, the insured person; whereas the claim advanced by Alicia Hartling “is an independent tort” and must be founded upon different basis. As put by Wawanesa’s counsel “she was not “person insured under the contract”. Wawanesa’s Section Coverage does not extend to her claim.” [6] Mr. Kulik, for the Facility Association has argued that plaintiff (next of kin) should be obliged to sue only one defendant to obtain full recovery. It should not be made necessary to sue Wawanesa under the Fatal Injuries Act and also to sue the Facility Association to recover for mental shock. This proposition has some appeal in terms of efficiency and economy of expense; and whether the legislation intended to make it necessary to sue two defendants. It is blunted however by the fact that if Alicia had been physically injured then the Facility Association would be the proper Defendant. Both counsel agree in that. If accept that her action for emotional injury is properly taken against Wawanesa then if she had at the same time suffered physical injury, there would again be duplication; one action against Wawanesa for emotional trauma and the other against the Facility Association for physical injuries. [7] The Insurance Act regulates the insurance coverage which is to be provided by insurers licensed to sell automobile insurance in Nova Scotia. Because it is fact of life that loss and injury occurs as the result of the operation of uninsured motor vehicles or drivers, the act establishes scheme for the protection of persons who suffer loss caused by uninsured vehicles. Section 106 of the Act requires that “every insurer carrying on the business of automobile insurance in the province shall be participant” in “The Facility Association Plan”. As Section 106 (1A) says the association will provide “payment with respect to claims for damages made by persons who are not insured under contract within the meaning of Section 139 and who have no other insurance”. [8] Automobile insurance is defined in Section 104 (c) 104 In this Part, (c) “automobile insurance” means insurance (i) against liability arising out of (A) bodily injury to or death of person, (B) loss of or damage to property caused by an automobile or the use or operation thereof. The section defines insured: 104 (f) “insured” means person insured by contract whether named or not, and includes any person who is stated in the contract to be entitled to benefits payable under insurance referred to in Section 140, whether or not the person is described therein as an insured person; (h) “motor vehicle liability policy” means policy, or that part of policy, evidencing contract insuring (ii) person who is not the owner or driver thereof where the automobile is being used or operated by his employee or agent or any other person on his behalf, against liability arising out of bodily injury to or the death or person or loss or damage to property caused by an automobile or the use or operation thereof; (emphasis added) 139 (1) (b) “person insured under contract” means (iii) in respect to claim for bodily injury or death, (B) the insured named in the contract and, if residing in the same dwelling premises as the insured named in th econtract, the insured’s spouse or common-law partner and any dependent relative 139 (2) Every contract evidenced by motor vehicle liability policy shall provide for payment by the insurer of all sums that (a) person insured under the contract is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injuries resulting from an accident involving an automobile; (b) person is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injury to or the death of person insured under the contract resulting from an accident involving an automobile; and (c) person insured under the contract is legally entitled to recover from the identified owner or driver of an uninsured automobile as damages for accidental damage to the insured automobile or its contents, or to both the insured automobile and its contents, resulting from an accident involving an automobile,subject to the terms, conditions, provisions, exclusions and limits prescribed by regulation. [9] It is of particular note that Section 139 (2) in subsections (a) and (c) refers to “a person insured” while Sub Section (b) encompasses persons outside that restricted class and refers simply to “a person”. However, the entitlement of that person is restricted to recovering damages suffered as result of the “bodily injury or death of person insured”. It is common ground that had Alicia Hartling suffered physical injury as result of the negligence of the Defendant LeBlanc, then it would be the Facility Association who would have to pay. [10] The parties are agreed that it is under this section 139 (2) (b) that family members may claim for damages as result of their entitlement as provided in the Fatal Injuries Act, R. S., 1989, 163. The Fatal Injuries Act entitles certain close family members; father, mother, grandfather, grandmother, step-father, step-mother, spouse, child, etc. to recover “damages as defined in Section (2) of the act including generally out of pocket expenses, but also “an amount to compensate for the loss of guidance, care and companionship expected (to be received) from the deceased if the death had not occurred”. [11] Section 139 (2)(b) would also apply, think, where the injury of “person insured” results in obligations to pay for nursing or rehabilitation and the expense or loss of income to “a person” who is responsible for the well being of the injured party. [12] It is instructive and in keeping with the case law that claim for damages surviving under the Fatal Injuries Act does not include claim for emotional distress or psychological injury which might result from the loss of loved one. Thus, it is in this context that Wawanesa takes the position that; while “a person insured” under Section 139 (2) (a) can recover for their own bodily injury including any psychological complications which they suffer as result of their own involvement in an accident; such is not the case under 139 (2)(b) where the claim of the “person” for emotional distress must be piggybacked on the bodily injury or death of the “person insured”. [13] Perhaps to sharpen the focus and as noted earlier, the Facility Association concedes that if Alicia Hartling had been physically injured as result of LeBlanc’s negligence, the Association would be liable to pay. But, since she was emotionally damaged- as result of the “bodily injury or death” of the “person insured”, then she is entitled to recover from Wawanesa. CONCLUSION: [14] Upon consideration I conclude that such is not the result. I do so because the emotional harm suffered by Alicia Hartling is simply too remote from the obligations contemplated by the contracting parties. [15] find it helpful to consider other possible scenarios where similar claim might be made. Consider for instance; circumstance where an infant, belonging to an “insured” household, playing in driveway is injured or killed by an uninsured vehicle, and neighbour, who is not person insured, watching the event suffers emotional trauma; or the same circumstance where the mother watches that event; think it could not be successfully argued that the neighbour is entitled to recover for emotional shock arising from the negligent act of this uninsured driver (perhaps salesman) except perhaps from the Facility Association. The mother, an insured person, as member of the injured household would be able to recover from their insurer, claiming Section Benefits. [16] The magnitude of the potential risk which the Facility Association would cast on the insurer would be dramatically apparent were an uninsured vehicle to crash into bus shelter housing 10 or 20 persons awaiting bus. If only one of those persons was injured or killed and happened to be “a person insured”, then the logical extension of the Facility argument would be that all the others, if they could prove emotional or psychological damage, would have valid Section claim. The impossibility of contemplating the extent of the potential liability constitutes valid reason for not distinguishing emotional damage resulting from such an accident to that of physical harm. [17] Less exotic, but nonetheless far reaching claims appear to have been discussed in this file. In particular, the father of Jonathan Hartling, who was not member of his household, and not an insured person under the policy, claimed to have been so distraught upon hearing the news of his son’s death, that he struck some object with his fist, causing physical injury and arguably suffering emotional pain. The Statement of Claim says of the father “he entered into state of extreme emotional distress or nervous shock whereupon he struck an object causing personal injury to his right arm, hand and shoulder and mental shock or trauma”. As noted earlier the courts have not recognized claim for such emotional distress arising from the death of loved one. It would be bizarre if one arose from the physical injury of loved one. Once again, would point out that loss to be recoverable must pass the test of foreseeability. The prospect of person, even family member suffering “mental shock” from hearing of the death of relative is surely too remote to be compensable under this contract. I conclude that the emotional injury of an uninjured person is not covered under the “Section D” provisions by reason of the fact that it is too remote from the original contract contemplated. It was not contemplated by the contracting parties to the insurance policy. It was not contemplated by the legislature when they passed the legislation. [18] Counsel have agreed that costs in the amount of $1,000.00 should be awarded to the successful party when decision is reached. Accordingly, Wawanesa will have an order for costs in that amount. Haliburton J.
The deceased's cousin commenced an action for nervous shock after she observed the accident in which the deceased bicyclist was killed. Since the defendant was an uninsured motorist, the Facility Association defended the plaintiff's action against him; however, the plaintiff also brought an action against the insurer of a motor vehicle policy under which the deceased was insured. At issue was whether the Section D provisions of the deceased's insurance policy extended to cover the plaintiff. The deceased's insurance policy does not provide coverage to the plaintiff as the emotional harm suffered by her was simply too remote from the obligations contemplated by the contracting parties.