A motor vehicle damage claim arising out of a vehicle used for a suicide is not recoverable under the deceased’s policy of insurance

An Insurer (“ING”) was successful in obtaining a Declaration that it had no obligation to provide coverage under a policy issued to an Insured, now deceased, where the claims against the deceased Insured related to damages sustained as a result of the Insured’s murder of his child and subsequent suicide.

ING Insurance Co. of Canada v. Harder Estate, Alberta Court of Queen’s Bench, Rowbotham J., February 1, 2007

Harder was an Insured under a motor vehicle policy issued by ING. Harder and the mother of his son, Naomi Manuel (“Manuel”), were separated. During an access visit, Harder drove his truck to a deserted area and shot his son who was in the back seat of the truck. Harder then committed suicide. The truck and the bodies were discovered by Harder’s uncle, with the truck still running and the gun inside the vehicle. Manuel sued the Harder Estate for damages for bereavement for the death of her son and for nervous shock.

The Court held that the tort alleged against Harder arose from the “ownership, use or operation of an automobile” after applying the test set out in the Supreme Court of Canada decision in Amos v. ICBC, [1995] 3 S.C.R. 405. As a result of this finding, the claim against Harder was potentially within the coverage provided under the ING policy.

The policy contained no express exclusion regarding the Insured’s intentional or criminal acts. However, the policy was subject to s. 529(2) of the Insurance Act, R.S.A. 2000, c. I-3 which provided:

Unless a contract of insurance provides otherwise, a contravention of any criminal or other law in force in Alberta or elsewhere does not render unenforceable a claim for indemnity under a contract of insurance except where the contravention is committed by the insured, or by another person with the consent of the insured, with the intent to bring about loss or damage.

Counsel for Manuel argued that this provision should not apply. It was conceded that Mr. Harder’s intent with respect to the deaths of himself and his son were obvious. However, it was submitted that it was not possible to ascertain his intent with respect to damages to Ms. Harder herself. The Court held that even if Harder intended damage only to himself and his son, the damages to Ms. Manuel would be included in the damages resulting from his act where such injury was foreseeable, even if the Insured’s intentional act had more serious consequences than the Insured may have anticipated, citing Buchanan v. GAN Canada Insurance Co. (2000), 50 O.R. (3d) 89 (Ont. C.A.). The Court was satisfied that Harder’s acts were intended to cause damage to Ms. Manual as required under s. 529(2). With respect to whether or not the actions of Harder represented “a contravention of any criminal law or other law in force in Alberta”, the Court held that the acts of Mr. Harder were at worse, first degree murder and at least, manslaughter. The Court rejected Manuel’s argument that a defence of diminished capacity may have succeeded. In the result, and based upon the allegations in the Statement of Claim, the Court held that Harder had contravened a criminal law with the intent to bring about loss or damage to Manuel. Consequently, ING was entitled to rely upon the provisions of s. 529(2) of the Insurance Act to deny coverage to Harder with respect to Manuel’s claims.

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