"USE OR OPERATION OF A MOTOR VEHICLE":
NO COVERAGE FOR HUNTING OR BOULDER TOSSING

The phrase “arising directly or indirectly from the use or operation of an automobile” has drawn a considerable amount of judicial attention over the years but on October 19, 2007 , it received a fresh look by the Supreme Court of Canada in the concurrent cases of Citadel General Assurance Co. v. Vytlingam and Lumbermans Mutual Casualty Co. v. Herbison. While certain to draw criticism from the general public due to the highly unfortunate and sympathetic facts, these decisions constitute a major victory for auto insurers across Canada.

The facts in both cases are bizarre and tragic. In Vytlingam, two “thrill seekers” dropped a boulder off of an overpass and onto a vehicle, catastrophically injuring an 18 year old and causing grave psychological damage to members of his family. In Herbison, a hunter, while driving to a designated hunting stand, stopped his vehicle after seeing what he believed to be a deer. After getting out of his truck and firing his rifle, he discovered that the deer was actually a member of his hunting party.

In both cases, the injured parties attempted to recover damages under motor vehicle policies. In Vytlingam, a claim was made by the insureds under the underinsured motor protection available under their own policy (the tortfeasors having insufficient coverage). In Herbison, the hunter sought indemnity under his own policy for a judgment obtained by the injured party. In both cases, the Court’s decision hung on whether the damages suffered arose “directly or indirectly from the use or operation of an automobile”, as set out in the insurance policies.

In the leading case of Amos v. ICBC, the Supreme Court held that with respect to no-fault benefits payable for "injuries arising" from the use and operation of a motor vehicle, a “relaxed causation” test was appropriate. In these circumstances, the party seeking benefits need only prove the use or operation "in some manner contributes to or adds to" the injury. This is a very low threshold for proving a causal connection. However, in Vytlingam and Herbison, the Court held the Amos test did not apply because no-fault benefits were not at stake. The question was not how the use or operation of the insured's own vehicle was connected to the insured's injuries in a no-fault situation but instead how the use or operation an insured's vehicle was connected to the injury of another person in a situation where proving fault was required. In the latter circumstances, the issue of causation was front and centre and a relaxed approach was not appropriate.

In Vytlingam, the Court stated that for coverage to exist under underinsured motorist protection, “there must be an unbroken chain of causation linking the conduct of the motorist to the injuries in respect of which the claim is made”. The vehicle’s involvement must have, therefore, been more than “incidental or fortuitous”. Rather, there must necessarily have been a direct causal link between the damage suffered and the “use or operation” of the vehicle. Thus, simply because the tortfeasors had used a motor vehicle to transport the boulder to the overpass (and indeed might not have been able to commit the tort were it not for the use of the motor vehicle), this did not make them “at-fault motorists”. The tossing of the boulders – the only tortious act at issue - was an activity “entirely severable” from use or operation of their vehicle. Furthermore, the inclusion of the word “indirectly” in the insuring provision was not enough to bring the tort within coverage.

Similarly, in Herbison, the Court posed the question of whether the negligent shooting was fairly within the risk created by the use or operation of the motor vehicle or whether the use of the truck merely created an opportunity for the tort to occur, without any causal connection. Given that the insured had exited his vehicle in order to take the shot, the Court concluded that the chain of causation had been broken such that coverage did not attach. It was not enough that the motor vehicle had in some manner contributed to the injury.

One might ask whether the result might have been different if the insured had not exited his vehicle before he began shooting. The Court’s treatment of the BC Court of Appeal decision of Chan v. ICBC suggests not. In that case, the Court found coverage under unidentified motorist protection where the claimant had been injured by a brick thrown from a moving vehicle. In Vytlingam, the Supreme Court criticized the Chan decision, and suggested that had the Court in that case properly focused on the elements of the tort that gave rise to the liability (ie. the tossing of the brick), coverage would have been properly denied.

These decisions send a clear message to the lower Courts that coverage should not be found simply out of a desire to give an innocent victim access to insurance money. Rather, the Supreme Court has demanded that a more rigorous and principled analysis be applied, so as to ensure that common sense rules the day, rather than sympathy.

If you have any questions about the decision or any other insurance matter, please contact Glen Boswall (telephone 604-643-3125 or e-mail rgb@cwilson.com) or Valerie Dixon (telephone 604-891-7743 or email vsd@cwilson.com) or any other member of the Clark Wilson LLP Insurance Practice Group.

For more information on "use and operation", see "Use or Operation of a Motor Vehicle": Understanding the coverage debate between motor vehicle and general liability insurers"