Insurance law - Automobile insurance - Benefits - Ownership, use or operation of motor vehicle - Exclusions - Duty to defend - Causation
July 1, 2008ING 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 pickup 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 pickup 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 digested by Shanti Davies of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact her directly at sdavies@harpergrey.com or 604.895.2877.
