A female driver whose drunk boyfriend caused her vehicle to crash in Abbotsford in 2006 will not receive any money from ICBC, a B.C. Supreme Court judge has ruled.
Justice Anthony Saunders made the decision Feb. 3 in Chilliwack, denying Marnetta Felix of about $863,000 in damages and costs.
Felix suffered significant injuries in the crash on July 8, 2006 which occurred on Highway 1 near Peardonville Road in Abbotsford. Her boyfriend, Kevin Hearne, was killed.
According to court documents, Felix, then 44, and Hearne had been at a soccer tournament in Langley, where Hearne drank some beer.
He became agitated when he saw Felix with her arm around another man, and she decided they should leave.
They got into Felix’s car – Hearne in the passenger’s seat – and began arguing.
Hearne twice briefly grabbed the steering wheel, which did not affect the movement of the car.
They merged onto Highway 1, en route home to Chilliwack, when Hearne again grabbed the steering wheel, but this time did not let go.
The car veered off the road. Felix’s next memory was of seeing people look down at her, and of Hearn lying unresponsive beside her, according to the court documents.
Felix filed a claim against Hearne’s estate and was awarded $792,000, plus costs of about $71,000 in September 2011.
Because Hearne’s estate did not have that money, Felix sought to recover those funds from ICBC, through third-party liability insurance, saying Hearne was liable because he committed a negligent act while using a vehicle.
Her lawyer further argued that refusing to extend liability coverage to an impaired passenger “would potentially leave an injured designated driver without any means of obtaining compensation.”
ICBC’s position was that Hearne was not “operating” the vehicle as defined under the Insurance (Motor Vehicle) Act and could not be held liable.
Saunders sided with ICBC on that aspect, saying he had to “unfortunately” come to that conclusion based on his analysis of the law.
Although Hearne’s actions interfered with the operation of the vehicle, it “was not operation in itself,” Saunders stated.
He said the law covers only situations where a passenger injures or kills someone outside of a vehicle – for example, when a passenger opens a door and interferes with a passing cyclist.
Saunders stated that the way the law is written “would appear to be a powerful disincentive to anyone acting as a designated driver, when there was any risk of a passenger acting irresponsibly.”
He acknowledged that his decision, based on his interpretation of the law, “is one which some may find disturbing.”
“If that consequence was unintended, that is a matter for consideration by the government,” he added.