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Former WHL goalie injury leads to insurance dispute

Insurance fight over goalie

A former WHL hockey goalie seriously injured his face in a strange accident back in 2015 in Vancouver, leading to an interesting insurance predicament that recently ended up in BC Supreme Court.

On Aug. 9, 2015, Gary Upton was working on his 1955 Chevrolet Bel Air in his driveway on Vancouver's Trinity Street when former Vancouver Giants goaltender Tyson Sexsmith came over to visit.

Upton was using a sledgehammer to attempt to straighten out a piece of metal he had removed from the car, when a strike launched the piece of metal into the air and struck Sexsmith in the face. Sexsmith said he suffered “significant eye injuries” and other injuries to his face.

The recent court decision says the August 2015 incident ended Sexsmith's career as a professional hockey goalie, but it appears his last season of professional hockey was in 2012-13 in Italy.

Sexsmith filed a suit against the Upton in August 2017 for damages from his injuries. The Uptons had home insurance through Wawanesa Mutual Insurance Company, which included $1 million for third-party claims, but the policy excludes claims arising from the “use or operation” of any motorized vehicle.

The Uptons also had an ICBC insurance policy on the Bel-Air, which covered any claims arising from the “use or operation” of the vehicle.

Because the injury arose while Upton was working on his car, but not driving it, ICBC denied coverage on the claim.

But in his recent decision in Kelowna's BC Supreme Court, Justice Gordon Weatherill ruled Upton's actions that led to Sexsmith's injuries fit into the definition of “use” of the Bel-Air.

But because Sexsmith's suit also makes allegations which fall under the Occupiers Liability Act, Justice Weatherill ruled Wawanesa also has a “concurrent duty to defend” Upton in the suit. Therefore, ICBC and Wawanesa must share the costs of defending Upton.

A 10-20 day trial on the matter is tentatively scheduled for May 2022.

Sexsmith played for the Vancouver Giants for five seasons, and holds the WHL record for most career shutouts, with 26. He won the Memorial Cup with the Giants in 2007.

He was drafted to the NHL by the San Jose Sharks in 2007, but he never played in the NHL, instead playing professional hockey for several years in the AHL and ECHL.



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