Damages resulting from a murder suicide that took place in the cab of a pick-up truck were not covered by an automobile policy

A man shot and killed his son and then himself while seated in his pick-up truck.  His automobile Insurer was successful on appeal in obtaining a declaration that it did not have any duty to defend the deceased Insured’s estate or to provide indemnity with respect to a claim brought against the Insured’s estate as a result of a shooting death. The Canadian Underwriter.ca discussed this case: Supreme Court’s 2007 rulings on “indirect use of an auto” favour ING in Alberta Court of Appeal.

ING Insurance Co. of Canada v. Harder Estate, [2008] A.J. No. 579, Alberta Court of Appeal, C.M. Conrad, R.L. Berger and P.T. Costigan JJ.A., May 29, 2008

The Insured shot and killed his son and then himself while both of them were inside the cab of the Insured’s pick-up truck.  The infant’s mother sued the Insured’s estate for damages for the death of her son and for psychological harm allegedly suffered by her.  The policy of insurance provided coverage for claims against the Insured for liability imposed by law for loss or damage “arising from the ownership, use or operation of the automobile.”

The motions judge held that the tortious actions of the father constituted “use or operation” of the insured motor vehicle and, accordingly, the claim against the father triggered the Insurer’s defence and indemnity obligations under the policy.  Notably, the reasons for judgment of the motions judge were issued prior to the Supreme Court of Canada’s unanimous judgments in Citadel General Assurance Co. v. Vytlingam, [2007] 3 S.C.R. 373, and Lumbermens Mutual Casualty Co. v. Herbison, [2007] 3 S.C.R. 393.

Having regard to these recent decisions, the Court of Appeal noted that the relevant inquiry was whether the Insured’s shooting of his son was within the risk created by his use or operation of his pick-up truck, or did the use of the truck merely create an opportunity for the damage to be inflicted, without any causal connection to the legal basis of tortious liability.

The Court of Appeal confirmed the sentiments expressed by the Supreme Court of Canada in Vytlingam and Herbison and noted that the act of buckling the infant into a car seat and carrying him to a remote location for whatever purpose does not give rise to civil liability and that liability arises as a result of the shooting of the infant.  The Court of Appeal further noted that the Insured had interrupted his act of motoring to kill both the infant and himself such that there was not an unbroken causal chain connecting the operation of the truck to the shooting.

In the result, the Insurer was granted a declaration that it was not required to defend the Insured’s estate or to provide indemnity by reason of the terms, conditions and exclusions set out in the automobile insurance policy.

This case was originally summarized by Shanti Davies and originally edited by David W. Pilley.

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