The failure by the Defendant to keep his dog contained in the rear of his pick-up truck raised a causal connection between the injury to the Plaintiff who was bitten by the dog and the use of the truck. This satisfied the requirement that the Plaintiff’s injury arose out of the “use of” the vehicle such that both ICBC and a comprehensive personal liability insurer were jointly obligated to defend the Insured.

14. July 2004 0

Taylor v. Maris, [2004] B.C.J. No. 143, British Columbia Court of Appeal

This was an appeal of the chambers judge’s finding that the Plaintiff’s claim did not arise out of the “use of” the Defendant’s vehicle. This finding resulted in the Defendant’s personal liability insurer, Canadian Northern Shield (“CNS”) rather than the Insurance Corporation of British Columbia (“ICBC”) having a duty to defend the Insured.

ICBC had a duty to defend the Insured for any action brought against the Defendant for which indemnity was provided. The Defendant was insured under s. 64 of the Revised Regulation (1984) under the Insurance (Motor Vehicle) Act for any claim that “arises out of the use or operation by the insured of a vehicle.”

CNS had a duty to defend the Insured for any claims for which coverage existed under a personal comprehensive liability coverage policy. This policy included coverage for claims related to bodily injury but expressly excluded claims “arising out of your ownership, use or operation of … motorized vehicles.”

The issue was therefore whether keeping a dog secured in the back of a parked pick-up truck amounts to “use or operation” of the vehicle.

The Court of Appeal reviewed the chambers judge’s application of the two-part test for determining whether the Plaintiff’s injury arose out of the use of a vehicle, established in Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405. The court asked first whether the accident resulted from the ordinary and well known activities to which automobiles are put and second, whether there is some causal relationship between the plaintiff’s injuries and the ownership, use or operation of the vehicle.

The Court of Appeal overruled the finding of the chambers judge who concluded that there was no basis to say that the connection between the Plaintiff’s injury and the use of the truck was other than incidental (i.e., not causally connected). The Court of Appeal found that the chambers judge overlooked a paragraph in the Plaintiff’s statement of claim stating that “the Defendant failed to keep his dog Rebel contained” in the vehicle. This raised a claim that had a causal connection to the vehicle because it implied a failure to physically adapt the vehicle to deal with the foreseeable risk that when the vehicle was used to transport the dog, it could bite someone standing outside it. The allegation that the dog was not contained in the truck which led to the bite occurring therefore satisfies the second test in Amos, supra.

Both insurers were found jointly liable to defend the action because the pleadings alleged concurrent causes of action, one attributable to automobile negligence and the other not related to the use of an automobile.

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