A person who transports himself to a location is not entitled to coverage under his automobile policy for actions taken after he has left his vehicle

21. November 2007 0

When an Insured seeks to recover damages in respect of bodily injury to or death of an Insured arising directly or indirectly from a tortfeasor’s use or operation of a motor vehicle, the claim must arise through an unbroken chain of causation from the ownership or from the use or operation of a motor vehicle.  In this case, a hunter who drove to the field in his car and mistakenly shot his friend while hunting was not entitled to coverage under his automobile policy.

Lumbermens Mutual Casualty Co. v. Herbison, 2007 SCC 47, Supreme Court of Canada, McLachlin C.J. and Bastarache, Binnie, LeBel, Deschmaps, Fish, Abella, Charron and Rothstein JJ., October 19, 2007

A hunter was driving to his designated hunting stand when he thought he saw a deer. It was before sunrise. He stopped and got out of his truck, removed his rifle, loaded it and, seeing a flash of white in the headlights – which he concluded was the tail of a deer about to take flight – he shot. Unfortunately, he hit another member of his hunting party, the Respondent to this appeal (the “Insured”). The Respondent sued the shooter’s motor vehicle Insurer, seeking it to satisfy his judgment against the shooter.

The Supreme Court of Canada determined that the appeal turned on: (1) whether the Insured’s claim was in respect of a tort committed by the tortfeasor in using his motor vehicle as a motor vehicle and not for some other purpose and (2) whether there was an unbroken chain of causation linking the Insured’s injuries to the use and operation of the tortfeasor’s motor vehicle.

The Courts below held the Insurer liable relying on Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405. The Supreme Court of Canada found the reasons of Amos somewhat helpful but concluded that the decision is not a template to resolve indemnity coverage because the type of insurance and the coverage requirements in Amos did not require the presence of an at-fault motorist.

In Amos, the Insurer contested no-fault liability to its Insured for statutory benefits payable “in respect of death or injury caused by an accident that arises out of the ownership, use or operation of a vehicle”.  The Insured had been attacked by a gang of strangers while he was motoring along an urban street in California. He was shot and seriously injured as he fled in his van away from the assailants, who were on foot.

In this appeal, the Court was not concerned with no-fault statutory benefits payable to an Insured. Moreover, in Amos, the focus was on the use of the Insured’s vehicle; the focus here was on the use of the tortfeasor’s vehicle. The Insurer was liable in Amos because entry into the Insured’s vehicle was the objective of the attackers and the Insured driving in his van was engaged in an “ordinary and well known” activity to which his vehicle could be put.

The Supreme Court of Canada affirmed that “the ordinary and well known activities to which automobiles are put” limits coverage to motor vehicles being used as motor vehicles. Thus, for example, someone who uses his car as a diving platform cannot expect to recover for his injuries under his motor vehicle insurance policy. The tortfeasor’s use of his motor vehicle to transport him to his hunting stand was not the effective cause of the Insured’s injuries.

The Supreme Court of Canada found that the Court below erred in transferring, without modification, the discussion of causation in Amos into the different context of determining whether the liability established here on the part of the tortfeasor arose directly or indirectly out of the use of his vehicle. For coverage to exist, there must be an unbroken chain of causation linking the conduct of the motorist as a motorist to the injuries in respect of which the claim is made. While the use of the tortfeasor’s vehicle “in some manner” contributed to his ability to commit the tort that caused the Insured’s injuries, such contribution does not mean that the tort was committed in his capacity as an at-fault motorist.

In Chan v. Insurance Corp. of British Columbia, [1996] 4 W.W.R. 734 (B.C.C.A.), a case very similar to Vytlingam, a case decided concurrently with this one, the Insured was injured while riding as a passenger in her boyfriend’s car when she was struck by a brick thrown from an oncoming vehicle that left the scene and was never identified. The British Columbia Court of Appeal considered whether the brick throwing could be “isolated” from the act of driving the tortfeasor’s car along a highway and accepted the trial judge’s view that it was not possible to do so.

The Supreme Court of Canada suggested that if the analysis had focused on the elements of the tort that gave rise to the tortfeasor’s liability, the fact that the brick was thrown from a car rather than a horse does not qualify it as a motoring activity. The brick throwing was an intervening act. In the present case the tortfeasor “interrupted his motoring to start hunting.” Thus, neither the tortfeasor in Chan, nor the tortfeasor in the present appeal were at fault as motorists.

This case was originally summarized by Cameron B. Elder and originally edited by David W. Pilley.

To stay current with the new case law and emerging legal issues in this area, subscribe here.