Car-sharing among plaintiffs and defendants

Car2Go, Modo, evo, and Zipcar are hugely popular alternatives to car ownership and public transit. As was first published in BarTalk’s October 2016 issue, Kevin Yee discusses the legal ramifications in the world of personal injury law.

To the chorus of The Clash’s Should I Stay Or Should I Go: Was it Evo, Modo, ZipCar? Was it Evo, Modo, ZipCar? car2go’s the other car-share, n’matter what, there’s duty of care.

The next time you’re stuck in traffic in Vancouver, see if you can spot the Modo, car2go, ZipCar, or Evo cars around you. They are the four major car-sharing programs in Vancouver. Once you notice them, you’ll realize just how popular they are. For many, car-sharing is a viable option. It can be an outright alternative to car ownership or just a way to get from point A to B for the occasional outing. Evo cars are often parked at hiking and mountain biking trailheads. car2go vehicles are left at YVR by members flying out of town.

For the personal injury lawsuit, car-sharing introduces a twist. What if a client comes to you and says they were in an accident involving a car-share? Whether or not that person was traveling in the car-share, there are certain practical considerations.

You may need to figure out who owns the car-share. Generally, the car-sharing program owns the vehicle. The owner could be a for-profit company like ZipCar or a co-op like Modo. The vehicle owner would likely be the insurance policy holder and so would have third party liability coverage for protection from lawsuits. Generally, this protection would extend to the vehicle’s drivers. This coverage varies from program to program. car2go offers $1 million whereas Modo offers $5 million.

Based on the specific car-share, the vehicle might be deemed a rental/leased vehicle. If so, consult the provisions of the Insurance (Vehicle) Act on vicarious liability of the vehicle owner and its statutory limits.

Car-shares permit registered members to use their fleet under terms and conditions. Have a look at those terms to determine whether the driver had the owner’s consent. Without consent, the driver may or may not be protected by the owner’s insurance policy. The issue of consent has implications on the owner’s vicarious liability for their vehicle’s driver. It also has serious implications for a plaintiff’s ability to collect. This scenario could play out if a registered member let a non-registered friend drive the car-share.

Here’s another curiosity: ZipCar and car2go prohibit members from using their vehicles in a “negligent” manner. Strictly speaking, anyone causing an accident – thereby committing the tort of negligence – would arguably run afoul of the terms!

What about investigating defences on liability? Perhaps you’ll need to figure out what route a car-share vehicle took just before the accident. The speed in which the vehicle was traveling might be key. Some shared vehicles have GPS tracking and so useful information may exist with the registered owner or on the driver’s membership account.

Also, certain aspects of car-sharing may inadvertently lend themselves to negligent driving. Find out if the driver was in a rush to return the car-share at the end of a reservation window. Or perhaps the driver was speeding as a result of a pay-per-minute system.

These are just a few novel considerations that car-sharing introduces to the typical personal injury lawsuit. It illustrates how the practice of law adapts to the ever-changing ways we use our roads. Car-sharing isn’t the only development. Mobi has just introduced bicycle-sharing in Vancouver. And Uber may eventually make a triumphant return to our province. Time will tell how personal injury law will evolve as new transportation options emerge.

A word of caution: You should not act or rely on the information provided in this article. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.

Related People