A Comox Valley woman is entitled to a $1-million settlement from a life insurance company following her husband's death, the B.C. Supreme Court ruled in an appeal decision Tuesday.
Debra McLean originally sought to recover $1-million benefit provided by a
common carrier accidental death benefit rider under a policy issued by Canadian Premier Life Insurance Company.
Her husband, Mark, a log-barge loader for Seaspan International, was killed Aug. 3, 2008, when a chartered Pacific Coastal Airlines aircraft in which he was travelling from Port Hardy to Chamiss Bay crashed en route, killing everyone on board.
The insurance company refused payment on the basis the rider did not provide coverage for accidental death occurring during charter flights.
McLean brought the company to trial seeking a declaration that she was entitled to accidental death benefit under the policy. On Jan. 31, 2012, a Supreme Court judge ruled against her.
The trial judge noted the policy states the common carrier referred to by the rider must be available to carry any passengers, no matter who they may be.
As the passengers on the Pacific Coastal Flight were selected by and paid for by Seaspan, and the company directed the time of departure and destination of the flight, the aircraft was indeed chartered and no member of the public at large had access to the flight, he added in his reasons for judgment.
Because it did not fit within the definition of 'common carrier,' under the accidental death benefit rider, the judge concluded McLean was not entitled to the million-dollar benefit under the rider.
In her appeal in front of a three-member panel, McLean said the rider does not distinguish between public and chartered passenger flights, but between passengers travelling on commercial flights and those travelling on private aircraft.
She also argued the rider is ambiguous as to coverage for charter flight, and should be interpreted in a manner consistent with the reasonable expectations of her husband, who routinely flew on charter flights in connection with his employment.
In her reasons for judgment for the appeal, Madam Justice Neilson noted the words used to define a common carrier fall short of creating a clear temporal requirement for each of the definitional elements, nor does the rider create a clear exclusion for charter flights.
She explained the definition provides that a common carrier has four elements: licensed to transport passengers for hire; provided and operated for regular passenger service by air; provided and operated on a regular passenger route with a definite regular schedule of departures and arrivals between established and recognized points of departure and arrival and provided and operated under a Common Carrier license at the time of the loss.
"It is clear the aircraft that crashed was licensed, provided and operated to transport the general public," Justice Neilson said in her reasons. "… I am satisfied it is unclear whether it had to be so engaged at the time of the accident, and this ambiguity must be resolved in favour of the appellant."
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