Tyson Sexsmith

Tyson Sexsmith

A flying sledgehammer that hit a bystander and ended his professional hockey career is at the centre of a dispute between two insurance companies.

Supreme Court Justice Gary Weatherill was asked to rule whether ICBC or Wawanesa was responsible for damages from the incident that took place in Vernon in 2015.

A hearing took place in January in Kelowna and Weatherill issued his ruling at the start of April.

Court heard that Gary Upton bought a 1955 Chevrolet Bel Air and insured it for $5 million in third-party liability coverage through ICBC.

On Aug. 9, 2015, Upton removed a bent metal plate from the Bel Air’s steering mechanism to correct a steering issue he had noticed the previous day. His plan was to straighten it, reattach it to the steering column, and continue driving the Bel Air, Weatherill wrote in his decision.

Upton placed the plate on a concrete step. He then attempted to straighten it by pounding it with a sledgehammer. He hit the metal plate approximately 20 times, with some success, and then took a break, the judge wrote.

Tyson Sexsmith was visiting and watching Upton swing the hammer.

Sexsmith was a Memorial Cup-winning goalie with the Vancouver Giants in 2007 and third-round draft pick of the San Jose Sharks. He went on to a pro career in the American Hockey League and Europe.

According to Wikipedia, his last season was in 2012-13 in Russia’s KHL.

“Unfortunately, when Mr. Upton resumed his attempts to straighten the Metal Plate with the sledgehammer and upon the third strike, it flew into the air and struck Mr. Sexsmith in the face.

“Mr. Sexsmith alleges that he suffered significant eye injuries, facial injuries, and other injuries as a result, which ended his career as a professional hockey goalie,” Weatherill wrote.

Upton reported the incident to Wawanesa the next day. He didn’t learn until 2019 Wawanesa had an issue with the coverage. Sexsmith sued the Uptons in 2017 for damages, the judge wrote. A trial is expected in 2022.

Last April, Wawanesa filed a petition declaring that ICBC should be the insurance company covering the claim.

The judge decided both insurance companies would be responsible.

“ I conclude that the Wawanesa Policy and the ICBC Policy provide concurrent coverage … with concurrent duties to defend.” he wrote. “ICBC’s responsibility will be 50 percent.”

The question the judge had to answer was whether Upton’s attempted repairs constitute “use or operation” of the Bel Air.

“Wawanesa argues that it is well-established that maintaining or repairing an otherwise operable vehicle constitutes “use” of that vehicle … ICBC contends that the Activity was not a ‘use or operation’ of the Bel Air,” Weatherill wrote.

Weatherill cited a number of past cases before concluding the repair effort was a use of the vehicle. He also rejected ICBC’s argument that it had been notified of the accident too late.

“The trial date is over one year away. A jury notice is still available and there is ample time for new defence counsel to prepare for trial,” the judge wrote.