Ricketts et al. v. Moore et al.; State Farm Fire and Casualty Company, Third Party

Ricketts et al. v. Canadian General Insurance Company; Moore et al., Third Party; State Farm Fire and Casualty Company, Fourth Party [Indexed as: Ricketts v. Moore]

56 O.R. (3d) 78

[2001] O.J. No. 3821

Docket No. C35776

Court of Appeal for Ontario

Austin, Goudge and Borins JJ.A.

October 1, 2001

Insurance -- Liability insurance -- Exclusions -- Insurance policy excluded coverage for liability arising from ownership, use or operation of "any motorized land vehicle" except those for which coverage shown in policy -- Claims arising out of ownership, use or operation of "lawn mowers, snow blowers, garden-type tractors, or implements used or operated mainly on your premises" expressly covered by policy -- Insured's child injured visitor when he lost control of go-kart powered by five-horsepower gasoline motor -- Go-kart was "motorized land vehicle" and was not "implement" -- Go-kart excluded from coverage.

A homeowner's policy issued to the insured provided coverage for liability to others for bodily injury or property damage. The policy excluded coverage for claims arising from the ownership, use or operation of "any motorized land vehicle . . . except those for which coverage is shown in this policy . . .". The policy listed exceptions to the exclusions under the marginal heading "motorized vehicles". Those exceptions included "lawn mowers, snow blowers, garden-type tractors, or implements used or operated mainly on your premises . . .". A visitor was injured when a child of the insured lost control of a four-wheeled go-kart powered by a five-horsepower gasoline motor. The visitor sued the insured. The insured brought a third party claim against the insurer, which denied that coverage for the loss in question was provided under the policy. The visitor brought a motion under Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for a determination before trial of the question whether the go-kart was excluded from coverage. The motions judge answered the question in the negative. The insurer appealed.

Held, the appeal should be allowed.

The go-kart was a motorized land vehicle and thus excluded. It was not an "implement" and was not, therefore, exempted from the exclusions. The word "implement" is defined by the Canadian Oxford Dictionary as: "1. a tool, instrument or utensil; 2. a piece of farm machinery". A go-kart is not a tool, instrument or utensil; nor is it a piece of farm machinery. The marginal heading "motorized vehicles" could not be used to bring a go- kart into the exceptions to the exclusions. The words "motorized vehicles" were clearly intended only as a marginal note or heading for guidance and ease of reading.

APPEAL from a judgment on a motion for determination of a question of law.

Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 21

Robin B. Cumine, Q.C., for appellant State Farm Fire and Casualty Company. Marinus L.M. Lamers, for respondents Dorothy Ricketts and Donald Morris. Michael J. Huclack, for respondent Canadian General Insurance Company.

The judgment of the court was delivered by

Introduction

1AUSTIN J.A.: -- This case involves a boy, a go-kart, a visitor and a home insurance company. The visitor was injured when the boy lost control of the go-kart. The motion judge found the insurance company liable. The insurance company appeals. In my opinion, the appeal should succeed. My reasons follow.

Background and Facts

2Gary and Margaret Moore and their sons, Andrew, eight, and Daniel, five, live on a country property near Ilderton, Ontario. Mr. Moore acquired a go-kart from a friend whose children had no further use for it.

3From the photographs, the go-kart, which is made of tubular steel, appears to be about five feet long and about two-and-a-half feet wide. It has a sheet metal seat and back rest fixed in position, with a pan beneath the seat to keep the driver's feet up off the ground. Its four wheels have inflated rubber tires, each perhaps 15 inches in diameter. The steering wheel is of the racing car type. The friction braking system is similar to that on a ten-speed bicycle. There is no gear system or reverse. The construction of the go-kart is such that it accommodates only the driver. There is no seatbelt.

4When Mr. Moore got the go-kart, it had no motor. He added a five-horsepower gasoline motor taken from either a lawnmower or roto-tiller. A gas pedal was also added. The speed was limited to five to seven miles per hour. While the Moores had it, the go-kart was operated only on their property.

5Andrew had no difficulty operating the go-kart. However, when Dorothy Ricketts was visiting the Moores on August 1, 1992, he lost control and the go-kart struck her, causing serious injuries to her left ankle.

6An action was brought against the Moores. They denied liability and brought a third party claim against their household insurer, State Farm Fire and Casualty Company. State Farm admitted having issued the policy in question but denied that it provided coverage for the loss claimed. State Farm also declined to defend the action on behalf of the Moores and delivered its own defence to the Ricketts' claim.

7The Moores were not represented on this appeal. Counsel was present on behalf of Canadian General Insurance Company, Ricketts' automobile insurer, but took no part in the argument.

Procedural History

8Following discoveries, Ricketts moved under Rule 21, Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for a determination before trial of the following question:

Is the go-cart, which was involved in the incident of August 1, 1992, which is the subject matter of the actions herein and which at all material times was operated by the Defendant, Andrew Moore and owned by the Defendants, Margaret Moore and Gary Moore, excluded from coverage pursuant to State Farm Fire and Casualty Company policy of insurance policy number 60-52-8212-6?

Desotti J. heard the motion on December 13, 2000, and delivered his reasons on January 25, 2001, holding that the claim was not excluded by the policy. State Farm appeals from that decision.

The Insurance Policy

9The policy describes itself as a "homeowner's extra policy". It provides insurance coverage to the Moores against loss of, or damage to, their house and its contents and to their personal property, by reason of fire and other defined perils. It also provides the Moores coverage for their liability to others for bodily injury or property damage sustained by them. There does not appear to be any doubt that had the Ricketts claim arisen in some fashion other than the way it did, coverage might well have been provided by the State Farm policy.

10The coverage provisions are as follows:

Coverage L -

Personal Liability

We will pay all sums which you become legally liable to pay as compensatory damages because of unintentional bodily harm or property damage. The limit of liability is the maximum amount we will pay under one or more sections of Coverage L for all compensatory damages in respect of one occurrence. You are insured for claims made against you arising from: 1. Personal - legal liability arising out of your personal actions anywhere in the world.

11Immediately following this language are exclusions as follows:

You are not insured for claims made against you arising from:

a. the ownership, use or operation of any motorized land vehicle, trailer, or watercraft, except those for which coverage is shown in this policy, and motorized land vehicles in dead storage on the premises;

b. damage to property you own, use, occupy or lease;

c. damage to property in your care, custody or control;

d. damage to personal property or fixtures as a result of work done on them by you or anyone on your behalf; or

e. bodily injury to you or any person residing in your household other than a residence employee.

[Emphasis added]

12Several pages later the policy provides some exceptions to these exclusions under the headings "watercraft", "motorized vehicles", "trailers", and "business and business property". The relevant provisions read as follows:

SPECIAL LIMITATIONS

watercraft

motorized vehicles

1. Vehicles You Own. You are insured against claims arising out of your ownership, use or operation of the following:

a. lawn mowers, snow blowers, garden-type tractors, or implements used or operated mainly on your premises provided they are not used for compensation or hire;

b. motorized golf carts while in use on a golf course; and

c. motorized wheelchairs and their trailers.

2. Vehicles You Do Not Own. You are insured against claims arising out of your use or operation of any self-propelled land vehicle, amphibious vehicle or air cushion vehicle, including their trailers, which you do not [own], provided:

a. the vehicle is designed primarily for use off public roads; and

b. you are not using it for business or organized racing.

You are not insured for damage to the vehicle itself.

Trailers

[Emphasis added]

The Decision Below

13The motion judge, after setting out the facts and relevant parts of the policy, dealt with the coverage issue as follows:

The central issue is whether the exclusion prevails or whether this child's motorized toy falls within the inclusion section under the broader expression of "implement" as used in the context of the inclusions.

A strict interpretation of the exclusion clause would seemingly end the discussion, as this motorized go-kart seems to be a motorized land vehicle and thus excluded. However, when I posed the question about where would a battery operated child's motor vehicle or car that one sees at Canadian Tire fit within this definition, the sense of the exclusion becomes less clear. When I further categorize this battery-operated car as a child's toy, the fuzziness inherent with the definition becomes more apparent as I tie the motorized land vehicle (go-kart) with its usage, a child's toy car.

There is no question that this go-kart designed for an eight year old, propelled by a lawn mower's motor, and ridden "on your premise" was and is a toy. This was its purpose and its usage. True, it does have trappings of a "motorized land vehicle" but it has a far closer connection to the type of inclusions found in the "motorized vehicles" heading. Even the use of the heading "motorized vehicles" lends credence to the view that a child's toy go-kart operated solely on the premises of the insured is consistent with the term "implement" used within part 1 a. of the inclusion. Furthermore, since the "implement" is found within the section or heading titled "motorized vehicle", I find that in this context, that it has a broad enough meaning to encompass a child's toy go-kart. Even if the word "implement" has a narrower definition or if it includes only garden type motor vehicles but not a toy go-kart, I am satisfied that the enumerated items within this inclusion but under the broader heading of "motorized veh icle" was not intended to be exhaustive. What is important from the insurer's point of view as seen through the risk in this inclusion of "motorized vehicle" is the usage by the insurer (sic) of those items on his property and not the item per se.

In the result, I answer the question posed by the plaintiff in the negative and find that the operation of the go-kart and the resulting accident is not excluded from the policy.

Analysis

14I agree with the judge below that a "strict" interpretation of the exclusion clause would end the discussion: the go-kart seems to be a motorized land vehicle and thus excluded. None of the words "motorized", "land" or "vehicle" is defined in the policy, but all three on their face appear to apply to the go-kart in question. The go-kart was "motorized" in the sense that it was driven or powered by a motor, it was intended to and did move on the "land" and it was a "vehicle". The Canadian Oxford Dictionary (1998) defines "vehicle" first as "any conveyance for transporting people, goods, etc., esp. on land". The go-kart transported or carried the driver.

15Counsel for the respondent referred to definitions of "vehicle" found in statutes concerned with highway traffic, the licensing of motor vehicles and mandatory insurance. The instant issue does not relate to any of those matters and those definitions are neither relevant nor helpful.

16The reference in the exclusion clause to exceptions ("except those for which coverage is shown in this policy") is to the heading "Special Limitations" and specifically to "Vehicles You Own" and "Vehicles You Do Not Own". The texts of these provisions are set out above.

17In this case, it is not necessary to decide whether or not a power mower or snow blower pushed manually would be included in the exception. Presumably a mower or blower on which the driver sits would be so included and would fall within the language of the section entitled "Vehicles You Own".

18The motion judge, having first found that the go-kart was a "motorized land vehicle" and as such excluded from coverage, went on to find that it was an "implement" or analogous to an "implement" and thus excepted from the exclusions. In my view, this finding was in error.

19The word "implement" is defined by the Canadian Oxford Dictionary (1998) as:

1. a tool, instrument or utensil;

2. a piece of farm machinery, e.g. a plow, manure spreader, combine, etc.

20A lawn mower, snow blower or a garden-type tractor would fit comfortably within this definition of "implement". A go-kart, however, is not an "implement". It is not a tool, instrument or utensil; nor is it a piece of farm machinery.

21The argument based on analogy likewise must fail because, apart from the word "implements", there is nothing in the language of the section entitled "1. Vehicles You Own" to permit the use of analogy. All the other words in this section are specific and none would include a go-kart.

22The motion judge's classification of the go-kart as a "child's toy" does not assist the respondent. In fact it may be argued that that classification assists the appellant in that "toy" and "implement" would appear to be mutually exclusive. That is, if an object is a "toy", it cannot also be an "implement". Quite apart from that argument, being classified as a "toy" does not mean that an object cannot at the same time be a "motorized land vehicle", particularly where, as here, the vehicle could cause significant harm if not carefully used.

23The motion judge went on to deal with the possibility that the word "implement" could not be construed to include a toy go-kart. In this event, he found that the items enumerated under the heading "motorized vehicles" were not intended to be exhaustive. Rather, what was intended to be included under this "broader heading" was to be determined by the kind of risk involved and not by the nature of the individual piece of equipment. In this case, the risk was to be covered where the use of the equipment was limited to the property of the insured. The go-kart was intended to be used only on the Moores' property and accordingly was excepted from the exclusions.

24I do not agree with this reasoning. I do agree with the proposition that location of use is a consideration when dealing with Vehicles You Own. The vehicles enumerated under 1.a are limited to use "mainly on your premises". Golf carts are excepted from the exclusion only when used on a golf course. The use of motorized wheelchairs and their trailers is apparently unlimited.

25There is, however, no basis whatever for the expansion of the enumeration of the vehicles in 1.a so as to include any or all "motorized vehicles". That enumeration is limited to the vehicles named -- "lawnmowers, snow blowers, garden-type tractors or implements" and the analysis above clearly excludes go-karts from that group. Putting it another way, the marginal heading "motorized vehicles" cannot be used to bring a go-kart into the exceptions to the exclusions. The words "motorized vehicles" are clearly intended only as a marginal note or heading for guidance and ease of reading.

26I conclude that whether or not the go-kart is a toy, it is nonetheless a motorized land vehicle. It falls within the exclusion clauses of the policy and it is not removed from them by the provisions respecting Vehicles You Own.

Disposition

27I would allow the appeal, set aside the order below and in its place substitute an order answering the question, in the affirmative:

Is the go-cart, which was involved in the incident of August 1, 1992, which is the subject matter of the actions herein and which at all material times was operated by the Defendant, Andrew Moore and owned by the Defendants, Margaret Moore and Gary Moore, excluded from coverage pursuant to State Farm Fire and Casualty Company policy of insurance policy number 60-52-8212-6?

28The appellant is entitled to its costs of the motion and of this appeal.