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Injury Cases Involving Children: Are the Insurance Issues truly "Murky"?

MountainAccident.jpg

Photo taken from www.theprovince.com

An article last week in the Province caught my eye - not only because it referred to a tragic mountain bike accident in 2010 involving a 15-year old young man at Sun Peaks Resort - but because it purported to shed light on the "murky" world of insurance law.  

We are not involved in the case in any way, and have no direct knowledge of any of the circumstances of the accident. However, on reading the article, I am not sure what aspect of the case the author found to be murky.

Based on what the article said, the injured boy initially commenced his action against the Resort, alleging negligence with respect to the conditions of the race.

As an aside, it is not clear to me if this is a potential issue in this case, but oftentimes before participating in an event such as a downhill race, or any other type of adventure sport such as zip-lining, white-water rafting, skiing, etc., a participant is expected to sign a waiver.

There are a number of legal issues that arise with respect to the validity of waivers signed by parents on behalf of minors, although that it is an issue that is worthy of a blog post of its own.

Faced with the litigation, the Resort then added the parents of the injured boy as participants to the action. The basis is not clear from the article, but perhaps the Resort is arguing that the parents were negligent with respect to their supervision of their child (again, we have not seen the claim). Although it may be a stretch to understand how parents might be negligent in such a situation, we have dealt with many cases involving young children where parents have been added to the litigation by the defendant for similar reasons.

In some of these cases, the defendant is hoping to trigger insurance coverage on the part of the parents, typically through the parents' home owner's insurance policy. That may be the strategy that is occurring with respect to the matter referred to in the Province.

In the circumstances, as the lawyer for the injured boy explained in the article, it was necessary for the young boy to also add his parents to the action so as to ensure the young boy's interests are fully protected. This is a step that we would expect would occur in any such similar circumstance.

Ultimately, the matter will then proceed through the litigation process with all of the liable parties potentially participating, including perhaps the insurer for the parents. I am not sure what, if anything, about this situation should be considered "murky". In many ways, it is no different than a situation where a young child is injured while a passenger in a car driven by his or her parent.

In those circumstances, even if there is another driver who may be responsible for the accident, it is quite common for the parent driver of the infant to also be named in the action. This ensures that both defendants' insurance is triggered and potentially available to satisfy any claim (of course this assumes there to be a viable basis upon which to conclude that the parent driver was negligent). In these situations, especially when dealing with a catastrophically injured young child, it is essential to ensure that all proper parties are named as defendants so as to protect the interests of your young client, even if that means suing his or her parents.

Based on my experience, it could perhaps be said to be somewhat unusual that a defendant would third party the parents of a 15 year-old who was involved in an event put on by the defendant resort (as opposed to a young child who might require more supervision). That potential issue aside, I am not sure that this matter is any different from how I would expect such a case to proceed.

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