The Ontario Court of Appeal, in allowing the appeal, held that the Plaintiff’s injuries arose “directly or indirectly” from the use or operation of a motor vehicle, and that the insurer was therefore required to indemnify the Plaintiff for the judgment obtained against the driver of that motor vehicle

Herbison v. Lumbermens Mutual Casualty Co., [2005] O.J. No. 2262, Ontario Court of Appeal

The Plaintiff was shot by a third party while deer hunting. The third party, due to a disability, drove his vehicle to the deer hunting stand while the other hunters, including the Plaintiff, walked to the deer-hunting stand. The third party stopped his vehicle and shot at the Plaintiff, whom he had mistaken for a deer. The court below concluded that the negligent act was merely incidental to the use of the vehicle and that the third-party liability coverage therefore did not apply. The Plaintiff appealed.

The Court of Appeal, in allowing the appeal, held that the Plaintiff had satisfied both the “purpose” test and the “causation” test.

With respect to the “purpose” test, the Court found that the third party used and operated the vehicle for transportation to the deer-hunting site, which was no doubt an “ordinary and well-known” activity to which vehicles are put.

With respect to the “causation” test, the Court noted that it was difficult to contemplate language more broad in its scope than “arising…directly or indirectly from the use or operation” of a motor vehicle. The Court held that the “causation” test was satisfied because the evidence established “some nexus or causal relationship” between the Plaintiff’s injuries and the third party’s use or operation of the vehicle that was more than “merely incidental or fortuitous”.

The Court of Appeal held that the insurer was required to indemnify the Plaintiff for the judgment he had obtained against the third party.

Note:  the interpretation of the phrase “arising directly or indirectly from the use or operation of an automobile”, as that phrase appeared in a family protection coverage endorsement, was also at issue in a recent unrelated case argued before the Ontario Court of Appeal. The Court’s reasons for judgement in that case, Vytlingam (Litigation guardian) v. Farmer, [2005] O.J. No. 2266, were released concurrently with the reasons in this case.

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