Tyson Sexsmith, who shares the WHL record for most career shutouts, has filed a personal injury lawsuit for damages against Nancy and Gary Upton of Vernon, B.C., over an accident that Sexsmith claims ended his playing career.
Sexsmith filed the Notice of Civil Claim on Aug. 2, 2017. A trial expected to last from 10 to 20 days is scheduled to begin on May 2, 2022.
A dispute between the Wawanesa Mutual Insurance Company and the Insurance Corporation of British Columbia (ICBC) over who must defend the Uptons was heard by Justice G.P. Weatherill in the Supreme Court of B.C. in Kelowna, Jan. 12-14. Justice Weatherill handed down his decision in Kelowna on April 1.
The injury occurred on Aug. 9, 2015, at the Upton home. According to evidence presented before Justice Weatherill, Gary Upton owned a 1955 Chevrolet Bel Air and had removed a “bent metal plate” from its steering mechanism in the hopes of straightening it and reattaching it to the steering column. Upton hammered away at the the plate, then took a break.
“Mr. Sexsmith was visiting the Uptons and was in the backyard watching the Activity,” wrote Justice Weatherill. “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. The Sexsmith Action advances negligence claims against the Uptons . . .”
Upton had a home-owner’s policy with Wawanesa that included $1 million for third-party claims, but it excluded claims arising from the “use or operation” of “any motorized vehicle.” He also had the Bel Air insured with ICBC, including $5-million third-party liability coverage.
Upton reported the incident to Wawanesa on Aug. 10, 2015, but didn’t contact ICBC because, Justice Weatherill wrote, “he was not aware that the ICBC policy might be engaged. He was also not aware of any possible issues with his Wawanesa insurance coverage until Sept. 16, 2019.”
After Sexsmith filed his lawsuit, Wawanesa filed a response denying liability on Oct. 3, 2017.
The Uptons’ lawyers told ICBC about the Sexsmith lawsuit on April 12, 2019. According to Justice Weatherill, ICBC advised Uptons’ lawyers on Sept. 5, 2019, that it wouldn’t be “accepting the claim.”
On April 16, 2020, Wawanesa filed a petition seeking a declaration that ICBC owed a duty to defend Gary Upton, and a declaration that it didn’t owe that same duty to either of the Uptons.
ICBC said it denied coverage because the incident didn’t involve “use or operation” of the Bel Air.
In the end, Justice Weatherill decided that the incident occurred “in respect of Mr. Upton’s ‘use’ of the Bel Air and, therefore, ICBC has a duty to defend Mr. Upton respecting that use” and that “the Sexsmith Action makes allegations of negligence and breaches of duties owed under the OLA (Occupiers Liability Act) and, therefore, Wawanesa has a concurrent duty to defend the Uptons respecting those allegations (i.e., they are both primary insurers).
Furthermore, Justice Weatherill wrote, “ICBC must indemnify Wawanesa for 50 percent of the costs of defending Mr. Upton from April 12, 2019 to the conclusion of the Sexsmith Action; and Wawanesa and the Uptons are entitled to their costs payable by ICBC.”
If you’re interested, the complete Reasons for Judgment are right here.
Sexsmith, now 32, was with the Vancouver Giants through four full seasons (2005-09). The San Jose Sharks selected him in the third round, 91st overall, of the NHL’s 2007 draft. He won the WHL championship with the Giants in 2006, then backstopped them to the 2007 Memorial Cup title. He had the WHL’s best GAA for 2006-07 (1.79) and 2007-08 (1.89). He also recorded a WHL-record 26 shutouts during his career. He now shares the record with Carter Hart (Everett Silvertips, 2013-18).
After turning pro, Sexsmith played in the AHL and ECHL, before making four appearances with the KHL’s Metallurg Novokuznetsk in 2012-13. He signed with the Abbotsford Heat in February 2013, but never played a game with the team that then was the AHL affiliate of the NHL’s Calgary Flames.
TAKING NOTE 