Russo et al. v. John Doe et al. [Indexed as: Russo v. John Doe]
95 O.R. (3d) 138
Court of Appeal for Ontario,
Weiler, Juriansz and MacFarland JJ.A.
April 15, 2009
Insurance -- Automobile insurance -- Underinsured motorist endorsement -- Insured sustaining serious injuries when hit by bullet fragment during drive-by shooting -- Insured suing driver of vehicle and her own insurer pursuant to OPCF 44R Endorsement -- Action dismissed -- Bullets fired by passengers in vehicle -- Insured's injuries not resulting directly or indirectly from ownership, use or operation of automobile -- Shooting constituting distinct and intervening act independent from use or operation of automobile.
The plaintiff, an innocent bystander, was seriously injured when she was hit by a bullet fragment during a drive-by shooting. The bullets were fired by two passengers in the car. She brought an action against the then-unidentified driver of the car and against her own automobile insurer pursuant to the OPCF 44R Endorsement in the standard automobile insurance policy. The motion judge granted summary judgment dismissing the action on the basis that the plaintiff's injuries did not result "directly or indirectly from the ownership, use or operation" of an automobile, as required by the OPCF 44R Endorsement. The plaintiff appealed.
Held, the appeal should be dismissed.
The driver of the car used in the drive-by shooting was clearly liable in tort to the plaintiff as a joint tortfeasor for his involvement in the shooting, as he acted in furtherance of the wrong that resulted in her injury. The plaintiff was therefore "legally entitled to recover" compensatory damages from him, as required by the OPCF 44R Endorsement. Moreover, the driver's action in furtherance of the wrong was the operation of the vehicle. However, under the OPCF 44R Endorsement, it is the bodily injury or death for which damages are claimed, not the claimant's legal entitlement to recover those damages, which must arise "directly or indirectly from the use or operation" of a motor vehicle. The plaintiff's injuries did not arise from the driver's driving. Instead, they resulted from the shooting by the passengers. The shooting was a distinct and intervening act completely independent from the use or operation of the vehicle. Since the shooting was a severable intervening event from the use or operation of the motor vehicle, the OPCF 44R Endorsement did not apply and the plaintiff was not entitled to coverage.
APPEAL from the judgment of B.A. Allen J., [2008] O.J. No. 2230, 2008 27182 (S.C.J.) dismissing an action.
Cases referred to Citadel General Assurance Co. v. Vytlingam, [2007] 3 S.C.R. 373, [2007] S.C.J. No. 46, 2007 SCC 46, 286 D.L.R. (4th) 577, 368 N.R. 251, J.E. 2007-1976, 230 O.A.C. 364, 53 C.C.L.I. (4th) 1, [2007] I.L.R. I-4645, 52 M.V.R. (5th) 1, 160 A.C.W.S. (2d) 1058, EYB 2007-124881; Lumbermens Mutual Casualty Co. v. Herbison, [2007] 3 S.C.R. 393, [2007] S.C.J. No. 47, 2007 SCC 47, 286 D.L.R. (4th) 592, 368 N.R. 292, J.E. 2007-1975, 230 O.A.C. 386, 53 C.C.L.I. (4th) 31, [2007] I.L.R. I-4651, 52 M.V.R. (5th) 35, 160 A.C.W.S. (2d) 1057, EYB 2007-124882, apld [page139] Other cases referred to Amos v. Insurance Corp. of British Columbia, 1995 66 (SCC), [1995] 3 S.C.R. 405, [1995] S.C.J. No. 74, 127 D.L.R. (4th) 618, 186 N.R. 150, [1995] 9 W.W.R. 305, 63 B.C.A.C. 1, 10 B.C.L.R. (3d) 1, 31 C.C.L.I. (2d) 1, [1995] I.L.R. 1-3232, 13 M.V.R. (3d) 302, 57 A.C.W.S. (3d) 640; Botiuk v. Toronto Free Press Publications Ltd., 1995 60 (SCC), [1995] 3 S.C.R. 3, [1995] S.C.J. No. 69, 126 D.L.R. (4th) 609, 186 N.R. 1, J.E. 95-1800, 85 O.A.C. 81, 26 C.C.L.T. (2d) 109, 57 A.C.W.S. (3d) 592; Chan v. Insurance Corp. of British Columbia, 1996 353 (BC CA), [1996] B.C.J. No. 17, [1996] 4 W.W.R. 734, 69 B.C.A.C. 187, 16 B.C.L.R. (3d) 96, 33 C.C.L.I. (2d) 226, [1996] I.L.R. 1-3305, 20 M.V.R. (3d) 126, 60 A.C.W.S. (3d) 605 (C.A.); Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., 1993 150 (SCC), [1993] 1 S.C.R. 252, [1993] S.C.J. No. 10, 99 D.L.R. (4th) 741, 147 N.R. 44, [1993] 2 W.W.R. 433, J.E. 93-230, 83 Man. R. (2d) 81, 13 C.C.L.I. (2d) 161, 6 C.L.R. (2d) 161, [1993] I.L.R. Â1-2914 at 2206, 37 A.C.W.S. (3d) 1267 Statutes referred to Insurance Act, R.S.O. 1990, c. I.8, ss. 239(1), (a), 265, (1) (a) Authorities referred to Financial Services Commission of Ontario, OPCF 44R -- Family Protection Coverage Endorsement, s. 3 Fleming, John G., The Law of Torts, 8th ed. (Sydney, Australia: The Law Book Company Limited, 1992)
Paul Bates and Charles E. Gluckstein, for appellants. Todd J. McCarthy, for respondents.
The judgment of the court was delivered by
JURIANSZ J.A.: -- I. Overview
1This appeal raises once again the scope of insurance coverage under the OPCF 44R -- Family Protection Coverage Endorsement ("OPCF 44R Endorsement") that relates to bodily injury caused by an inadequately insured motorist and is contained in the standard automobile insurance policy in Ontario. In two recently decided cases, Citadel General Assurance Co. v. Vytlingam, 2007 SCC 46, [2007] 3 S.C.R. 373, [2007] S.C.J. No. 46, and Lumbermens Mutual Casualty Co. v. Herbison, 2007 SCC 47, [2007] 3 S.C.R. 393, [2007] S.C.J. No. 47, the Supreme Court of Canada determined the limits of insurance coverage available to persons seeking to make claims involving uninsured or unidentified persons under ss. 239(1) and 265 of the Insurance Act, R.S.O. 1990, c. I.8, and inadequately insured persons under the OPCF 44R Endorsement. The sole question on appeal is whether these [page140] decisions dictate finding that the appellants' insurance claim falls outside the scope of coverage provided by the OPCF 44R Endorsement.
2The appellant, Louise Russo, was the unfortunate victim of a drive-by shooting in which she sustained spine injuries that rendered her paraplegic. She brought an action against the unidentified driver of the car and against The Personal/La Personnelle (the "respondent"), her own automobile insurer, pursuant to the OPCF 44R Endorsement.
3The respondent delivered a Statement of Defence, claiming that Ms. Russo's injuries did not result "directly or indirectly from the ownership, use or operation" of an automobile, as required by the OPCF 44R Endorsement, but rather from an intervening independent act -- the shooting. Relying on the Supreme Court's decisions in Vytlingam and Lumbermens, the respondent brought a motion for summary judgment for the determination before trial of a question of law -- the interpretation of the limits of liability insurance coverage under the OPCF 44R Endorsement.
4The motion judge allowed the respondent's motion and granted summary judgment in its favour, thereby dismissing Ms. Russo's claim against the respondent for insurance coverage in respect of the damages she suffered. The motion judge found that the Supreme Court had settled the law with respect to the limits of liability under the OPCF 44R Endorsement and that Ms. Russo's claim was outside the scope [of] those limits.
5The appellants appeal to this court from the decision of the motion judge. For the reasons that follow, I would dismiss the appeal.
II. Facts
The drive-by shooting, Ms. Russo's injuries and the commencement of the action
6On April 21, 2004, Ms. Russo drove into the parking lot of a California Sandwiches restaurant and parked her car, leaving the engine running and her daughter in the car while she went into the restaurant to get a snack. Without warning, bullets were shot into the restaurant while Ms. Russo was inside. A bullet fragment hit her spine, seriously injuring her and rendering her paraplegic. The assailants had fired the shots from a stolen van as it was driving by in the parking lot.
7The police investigation later determined that the assailants had intended to kill Michael Modica, another patron who was seated at the back of the restaurant. The assailants mistook [page141] four innocent men standing in the front of the restaurant for Modica and his associates. Mark Peretz, who was later identified as the driver of the van, drove towards the front of the restaurant and his two passengers, Antonio Borrelli and Paris Christoforou, opened fire using a Colt semi- automatic rifle and a handgun. The four innocent men took cover and Ms. Russo was the only person hit by any of the bullets. The assailants then fled the parking lot in the van driven by Peretz.
8Since the identities of the assailants were initially unknown, Ms. Russo and the other appellants, who are members of her family, commenced an action against John Doe, Jane Doe and the respondent. Ms. Russo's claim against the respondent was based on ss. 239(1)(a) and 265(1)(a) of the Insurance Act and s. 3 of the OPCF 44R Endorsement.
The relevant statutory provisions
9Section 239(1)(a) of the Insurance Act requires all automobile insurance policies to insure the policyholder against the liability of other tortfeasors for loss or damage "arising from the ownership or directly or indirectly from the use or operation" of an automobile (emphasis added). Section 265(1)(a) of the Insurance Act requires every automobile liability insurance policy to provide for recovery of damages for bodily injury from the owner or driver of an uninsured automobile or from an unidentified driver. The OPCF 44R Endorsement, which tracks the language used in s. 239(1) (a), "backstops" s. 239(1)(a) in cases where the contribution of the tortfeasor's own insurer (if any) is inadequate: see Vytlingam, at para. 7. It provides that the policyholder's own insurer will indemnify him or her "for the amount that he or she is legally entitled to recover from an inadequately insured motorist . . . in respect of bodily injury . . . arising directly or indirectly from the use or operation of an automobile" (emphasis added).
10The effect of these provisions, read together, is that the subsequent identification of the assailants does not affect the legal issue to be determined, because it is not contested that Peretz, the driver of the van, is inadequately insured. Accordingly, whether or not the respondent is required to compensate Ms. Russo for her damages depends on the proper interpretation of the OPCF 44R Endorsement.
III. Reasons and Disposition of the Motion Judge
11I note that although the motion judge focused her analysis on the scope of insurance coverage provided for in s. 239(1)(a) of the Insurance Act, it is implicit that her analysis applies to the [page142] limits of insurance coverage under the OPCF 44R Endorsement, which tracks the language of s. 239(1)(a), the sole issue in this case.
12The motion judge accepted the respondent's position and concluded that, as was the shooting in Lumbermens and the rock throwing in Vytlingam, the shooting in this case was an independent act that broke the chain of causation linking the use of van and Ms. Russo's damages. Consequently, Ms. Russo's injuries did not arise "directly or indirectly from the use or operation" of the assailants' vehicle as required for entitlement to insurance coverage under the OPCF 44R Endorsement.
13In reaching this conclusion, the motion judge considered both whether the assailants' use of the van at the time of the incident was an ordinary and well-known use thereof (the purpose test) and, if so, whether a causal connection existed between Ms. Russo's injuries and the ownership, use or operation of the van (the causation test).
14In applying the purpose test, the motion judge accepted that an ordinary and expected use of an automobile is to transport persons to and from a restaurant parking lot. However, she found that it was "more difficult to say" that it is an ordinary use of an automobile to transport guns and assailants to a restaurant to effect a shooting and then to escape the scene.
15The motion judge stated that [at para. 31] "[t]he causation test presents a perhaps more challenging obstacle" for Ms. Russo. She did not see as significant the factual difference that Ms. Russo was shot from a moving car, whereas the defendants in both Lumbermens and Vytlingam had gotten out of their vehicles before they committed the tortious acts. According to the motion judge, this distinction did not place Ms. Russo's situation outside the scope of the Lumbermens and Vytlingam decisions. She pointed out [at para. 33] that the Supreme Court made clear in Vytlingam that it is not enough that the tortfeasor's car "contributed in some manner" to the tortfeasor's ability to commit the tortious act. Rather, the tortious act must be committed in the driver's capacity as an at-fault "motorist".
16Thus, while the motion judge [at para. 36] accepted that the assailants' vehicle "contributed in some manner" to Ms. Russo's injuries, she concluded that "the shooting was separate and independent from the use and operation of the vehicle" and "[t]he fact that the assailants shot the gun from a motor vehicle does not make that act a 'motoring activity' that can attract indemnification". [page143]
17On the basis of this conclusion, the motion judge granted the respondent's motion for summary judgment and dismissed Ms. Russo's action.
IV. Analysis
The text of the legislative provisions
18The starting point of the analysis is the text of the applicable legislative provisions. Section 3 of the OPCF 44R provides that
. . . the insurer shall indemnify an eligible claimant for the amount that he or she is legally entitled to recover from an inadequately insured motorist as compensatory damages in respect of bodily injury to or death of an insured person arising directly or indirectly from the use or operation of an automobile. (Emphasis added)
19The text makes clear that the claimant must be "legally entitled to recover" from an at-fault inadequately insured motorist. It is this feature of the legislative scheme that makes inapplicable the decision of the Supreme Court in Amos v. Insurance Corp. of British Columbia, 1995 66 (SCC), [1995] 3 S.C.R. 405, [1995] S.C.J. No. 74. Amos related to no-fault statutory benefits. This case, however, deals with at-fault insurance coverage; the Supreme Court's decisions in Lumbermens and Vytlingam are therefore applicable.
20In addition to the requirement of an at-fault tortfeasor, the OPCF 44R Endorsement provides coverage only where the loss or damage arises "directly or indirectly from the use or operation" of an automobile. Two fundamental elements of this phrase determine its scope. First, as the provision includes "the use" and not just the "operation" of an automobile, its scope is broader than loss or damage that arises simply from a driver's manipulation of the mechanical controls of an automobile. Second, the provision covers loss or damage that arises both "indirectly" as well as "directly" from the use or operation of an automobile. Given the elasticity of the word "indirectly", it is necessary to look to the guidance provided by the Supreme Court to determine the limits of coverage provided by the OPCF 44R Endorsement.
21It must be kept in mind that the coverage in issue is part of a policy of automobile insurance. As Binnie J. observed in Vytlingam, at para. 4, "[i]nsurance policies must be interpreted in a way that gives effect to the reasonable expectations of both insured and insurer" (emphasis in original): citing Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., 1993 150 (SCC), [1993] 1 S.C.R. 252, [1993] S.C.J. No. 10, at p. 269 S.C.R. Accordingly, in order to trigger the OPCF 44R Endorsement, the at-fault [page144] defendant's tort must be committed as a "motorist". There are two aspects to this inquiry -- the purpose test and the causation test. In Vytlingam, at para. 12, Binnie J. articulated these tests as follows:
The questions are, firstly, whether the . . . claim is in respect of an inadequately insured tortfeasor whose fault occurred in the course of using a motor vehicle as a motor vehicle and not for some other purpose (as a diving platform, for example, as hereafter discussed), and secondly, whether the chain of causation linking the claimed loss or injuries to the use and operation of the motor vehicle, which is shown to be more than simply fortuitous or "but for", is unbroken.
The purpose test
22As indicated above, the purpose test asks "whether the . . . claim is in respect of an inadequately insured tortfeasor whose fault occurred in the course of using a motor vehicle as a motor vehicle and not for some other purpose" (emphasis added). The test has a low threshold. It excludes only aberrant uses of a motor vehicle and nothing more. Binnie J. fittingly described the OPCF 44R Endorsement as "a big tent" and added that "not much will be excluded as aberrant to the use of a motor vehicle as a motor vehicle": Vytlingam, at para. 22.
23Under the purpose test, it is the actual manner in which the motor vehicle is used that is determinative, not the subjective reasons the tortfeasor may have for climbing into the vehicle and using it: Vytlingam, at para. 18. As a result, the fact that a motor vehicle is used for a criminal purpose does not necessarily exclude coverage, provided the motor vehicle is used as a motor vehicle and not for some other aberrant purpose: Vytlingam, at para. 18.
24The motion judge, in concluding that the purpose test was not met in this case, refused to accept that "it is an ordinary use of an automobile when you add to the scenario that the vehicle is being used to carry guns and assailants to effect a shooting and to escape the scene". With respect, the motion judge erred in this analysis by improperly considering both the subjective reasons of Peretz for driving the car and the criminal activity for which the car was used. I would put things much more generically -- the motor vehicle was used to transport passengers and apparatus from one place to another. Peretz used the van to transport Borrelli and Christoforou and their guns from wherever they were to the front of the restaurant. Viewed from this perspective, Peretz's use of the van was a well-known and ordinary use of an automobile. The purpose test, in my view, was met on the facts of this case, as far as Peretz is concerned.
25I turn now to the causation test. [page145]
The causation test
26As noted above, the OPCF 44R Endorsement provides coverage only where the tortfeasor whose conduct is the subject matter of the indemnity claim is at fault as a motorist. It is not enough that Ms. Russo's damage would not have arisen "but for" Peretz's use of the motor vehicle. The "but for" test is not employed, as its application would cast too wide a net in extending coverage. As Binnie J. explained in Vytlingam, at paras. 25 and 29:
For coverage to exist, there must be an unbroken chain of causation linking the conduct of the motorist as a motorist to the injuries in respect of which the claim is made. . . . . .
The claimant must implicate the vehicle in respect of which coverage is claimed in a manner that is more than merely incidental or fortuitous.
27Ms. Russo points out that the facts of both Lumbermens and Vytlingam are distinguishable from those of the present case. In both of those cases, the tortfeasors stopped their vehicles, got out of them, and moved a short distance before committing the tortious acts. [See Note 1 below] By contrast, in this case, Peretz was driving the van throughout the incident. Ms. Russo asserts that the motion judge failed to recognize this critical distinction. This distinction is used to develop the following thesis.
28On the facts of this case, Peretz is clearly liable in tort to Ms. Russo as a joint tortfeasor for his involvement in the drive-by shooting, as he acted in furtherance of the wrong that resulted in her injury: see Botiuk v. Toronto Free Press Publications Ltd., 1995 60 (SCC), [1995] 3 S.C.R. 3, [1995] S.C.J. No. 69, at para. 74, citing John G. Fleming, The Law of Torts, 8th ed. (Sydney, Australia: The Law Book Company Limited, 1992), at p. 255. She is therefore "legally entitled to recover" compensatory damages from him, as required by the OPCF 44R Endorsement. Moreover, Peretz's action in furtherance of the wrong -- his active participation in the common plan -- was the operation of the vehicle. Throughout the group's tortious behaviour that caused Ms. Russo's injuries, Peretz continuously operated the van. In [page146] particular, he operated it on a route and at a velocity as to orient it to facilitate the shooting. His criminal intention and the criminal nature of his activity do not detract from the fact that Ms. Russo's legal entitlement to recover compensatory damages from him in tort may be founded on his operation of the vehicle.
29Ms. Russo urges that the motion judge should not have relied on obiter dicta from the reasons of the Supreme Court in Vytlingam disapproving of the decision of the British Columbia Court of Appeal in Chan v. Insurance Corp. of British Columbia, 1996 353 (BC CA), [1996] B.C.J. No. 17, [1996] 4 W.W.R. 734 (C.A.). In Chan, the plaintiff was injured while riding as a passenger in a car when she was struck by a brick thrown from an oncoming vehicle that fled the scene and was not subsequently identified. Binnie J. commented that "[t]he rock throwing was an intervening act" and "the fact the brick was thrown from a car rather than a horse does not qualify it as a motoring activity": Vytlingam, at para. 31.
30Ms. Russo submits that this dicta is not binding and does not precisely address the facts of this case. According to her, the Supreme Court referred to the decision in Chan only to make the point that similar issues as arose in Vytlingam could arise in relation to unidentified vehicle indemnification insurance coverage. While making that point, the court simply observed that throwing a brick is not motoring activity. In this case, however, Peretz's liability in tort is not based on his throwing of a brick or shooting of a gun, but rather on his operation of a motor vehicle.
31Based on this analysis, Ms. Russo submits that her legal entitlement to recover damages from Peretz is based on his acts as a motorist; there was no intervening act, as Peretz operated the van throughout. It follows, she argues, that the causation test has also been satisfied.
32There is a simple yet significant flaw in this argument: under the OPCF 44R Endorsement, it is the bodily injury or death for which damages are claimed, not the claimant's legal entitlement to recover those damages, which must arise "directly or indirectly from the use or operation" of a motor vehicle. Ms. Russo's theory establishes merely that her legal entitlement to recover damages arises from Peretz's use or operation of the van. If this alone satisfied the requirements of the OPCF 44R Endorsement, coverage would be unjustifiably broad. There would have been coverage, for example, in the Vytlingam situation if the driver had simply remained in the car while his passenger got out and dropped the boulder. [page147]
33It is worth remembering Binnie J.'s admonition that the interpretation of a policy of automobile insurance should be interpreted in a way that gives effect to the reasonable expectations of both insured and insurer. It is not reasonably expected that automobile insurance will cover injuries or death arising from the joint act of a group of tortfeasors simply because one tortfeasor's involvement in the tortious act consists of operating a motor vehicle. Automobile insurance does not cover injuries caused by robbers inside a bank even though the driver of the getaway car may be legally liable as a joint tortfeasor for the damages suffered.
34Here, Ms. Russo's injuries did not arise from Peretz's driving. Instead, her tragic injuries resulted from the shooting by Borrelli and Christoforou. As the respondent submits, the shooting was a distinct and intervening act completely independent from the use or operation of the van. Although the incident can indeed be characterized as a drive-by shooting, this characterization simply means that the vehicle "create[d] an opportunity in time and space for damage to be inflicted": Lumbermens, at para. 10. This is not sufficient for the extension of coverage under the OPCF 44R Endorsement.
35Accordingly, since the shooting was a severable intervening event from the use or operation of the motor vehicle, the OPCF 44R Endorsement does not apply and Ms. Russo is not entitled to coverage.
V. Disposition
36For these reasons, I would dismiss the appeal and affirm the decision of the motion judge. Counsel indicated they would attempt to reach an agreement as to costs. If they are unable to do so, they may make brief written submissions within 10 days.
Appeal dismissed.
Notes
Note 1: In Vylingam, the tortfeasor stopped his car on the overpass, got out of the car, lifted the boulder out of the trunk of the car and then carried the boulder a short distance to the overpass railing before lifting it over and dropping it onto the road below. Similary, in Lumbermens, the tortfeasor stopped his truck, got out of the truck, went behind the vehicle and leaned on the truck to steady his aim before firing his rifle.
