A propane tank explosion in a parked car caused by cigarette smoking is covered by automobile insurance as the damage arose from the use or operation of an automobile.

In Manitoba, the law with respect to “use or operation” of an automobile in the context of no-fault insurance has not been changed by the recent Supreme Court of Canada decisions of Lumbermens Mutual Casualty Co. v. Herbison, 2007 SCC 47, and Citadel General Assurance Co. v. Vytlingham, 2007 SCC 46.  The test to be applied is  “Were the injuries caused by (in the sense of being related to) the use of an automobile?  In the present case, a person smoking in a parked car attempted to move a full propane tank causing an explosion.  This was found to fall within the use and operation of an automobile.

Constantin v. Manitoba Public Insurance Corp., 2008 MBCA 5, Manitoba Court of Appeal, R.J.F. Chartier J.A., January 22, 2008

The Manitoba Public Insurance Corporation (MPIC) sought leave to appeal from a decision of the Automobile Injury Compensation Appeal Commission. Pursuant to s. 187(2) of The Manitoba Public Insurance Corporation Act, C.C.S.M., c. P215 leave may only be granted on a question of jurisdiction or of law.

The insured had been transporting a new propane stove to a friend. She placed it on the back seat of her vehicle and drove to her friend’s place. When she arrived, he was absent. She then drove to a park, some five miles outside of town, to walk her dogs. Upon returning to the vehicle, she sat in the driver’s seat. Since the stove had been making a lot of noise on the trip to the park, the insured decided to reposition it. From the front seat, and with a lit cigarette in her mouth, she turned around to move the stove. While doing so, she was suddenly enveloped by fire and thrown from her vehicle. She sustained serious burns and other bodily injuries. She sought coverage under Part 2 of the Act for these injuries.

The claim for Part 2 benefits was denied by the MPIC case manager on the basis that an investigation had revealed that the proximate cause of her injuries was smoking in the presence of propane gas and not by an automobile or the use of an automobile. The Commission overturned the internal review officer’s decision, finding that the insured’s injuries were caused by the use of an automobile or a load.

In its notice of motion seeking leave to appeal, MPIC identified the issue as follows: “Did the Commission err in law in its interpretation of Sections 70(a) and 71(1) of the Act by finding that [the insured] sustained a bodily injury caused by an automobile, by the use of an automobile or by a load?” MPIC submitted that this was a question of statutory interpretation and question of law. The relevant sections of the Act are as follows:

“70(1) In this Part,

“accident” means any event in which bodily injury is caused by an automobile;

…

“bodily injury caused by an automobile” means any bodily injury caused by an automobile, by the use of an automobile, or by a load, including bodily injury caused by a trailer used with an automobile…

Application of Part 2

71(1) This Part applies to any bodily injury suffered by a victim in an accident that occurs on or after March 1, 1994.”

MPIC asked the court to consider how the decisions of Lumbermens Mutual Casualty Co. v. Herbison, 2007 SCC 47, and Citadel General Assurance Co. v. Vytlingham, 2007 SCC 46, might have impacted the Commission’s decision.

The insured argued that the Commission, in reaching its decision, was simply applying the established legal principles developed in McMillan v. Thompson (Rural Municipality) (1997), 115 Man.R. (2d) 2, which applied Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405.

The court held that the two recent Supreme Court of Canada cases do not deal with no-fault insurance schemes. This, the court said, was confirmed by the Supreme Court of Canada in Citadel General. As such, the court found that the Commission had been right to apply the test formulated in McMillan which was as follows: “Were the respondent’s injuries caused by (in the sense of being related to) the use of an automobile?” As such there was no issue of law to be appealed and the application for leave to appeal was denied.

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

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