COURT FILE NO.: 21-2002 County of Huron DATE: January 7, 2004
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
WAYNE REDMOND
Philip B. Cornish, counsel for the Appellant
Appellant
- and -
WEST WAWANOSH MUTUAL INSURANCE COMPANY
Patrick Murphy, counsel for the Respondent
Respondent
HEARD: November 19, 2003
MISENER, J.:
[1] The appellant, Wayne Redmond, owns a 1994 International truck. In March 2002, while he was in the process of delivering a load of wood, the right rear dual wheels of the truck became mired in the soft ground. Mr. Redmond attempted to extricate the truck under its own power. He could not. A neighbour then attempted to pull it out with his tractor. He failed. The next day, in Mr. Redmond’s absence and without his permission, a feed truck attempted to pull it out. He failed as well. Later on, on the same day, a cement truck finally succeeded in doing so.
[2] At some point in all of these attempts, the rear differential gear and one of the brake anchors were broken. Mr. Redmond sought indemnification from the respondent, his motor vehicle insurer, for the cost of the repair. The respondent denied that the loss was insured against under the terms of Mr. Redmond’s policy and so Mr. Redmond brought an action in the Small Claims Court. The trial judge dismissed the action. Mr. Redmond appeals that judgment to this court.
[3] In my view, the appeal must be allowed. The trial judge did not make the findings of fact that needed to be made to properly decide all of the issues in the case. Accordingly, the judgment must be set aside, and a new trial ordered.
[4] Five witnesses testified at the trial and I propose the summarize their evidence.
[5] Mr. Redmond testified that he purchased his 1994 International truck in December 1999. It had about 230,000 kilometers on the odometer at the time. He said that it was in an excellent state of repair. He had a 19 foot box and a hydraulic hoist installed so that the truck could be used to deliver firewood to his customers. He said that he had driven it only about 5,000 kilometers up to the time of the mishap.
[6] At some time in mid-March 2000 he attended at Robert Martz’s residence near the Town of Listowel to deliver about five ton of firewood. Mr. Martz directed him to the location at which he was to dump the wood. In attempting to back into that location, the right rear dual wheels sank into the soft ground. Mr. Redmond attempted to drive ahead. The truck would not move.
[7] The evidence is not altogether clear as to all that was done in order to extricate the truck before Mr. Redmond abandoned the attempt. Certainly at some stage he attempted to raise the box with the hoist to dump the load. That effort largely failed, although about three cords of wood rolled off. Mr. Redmond and Mr. Martz put some wood under one or more of the tires in the hope of gaining traction. Mr. Redmond then attempted again to drive the truck forward, but without success. Mr. Martz enlisted the help of a neighbour. The neighbour hooked a cable on the truck and attempted, on two separate occasions, to pull the truck out with his tractor. On each occasion Mr. Redmond attempted to drive the truck forward to assist. These efforts failed.
[8] The evidence is not clear as to the precise number of times that Mr. Redmond actually attempted to drive the truck forward, or as to the precise period of time over which the efforts to extricate the truck were made. Mr. Redmond was adamant however that he made no attempt at any time to rock the truck by moving the gear from forward to reverse in relatively rapid succession, and he seemed to say that he made no use at all of the reverse gear. Mr. Redmond abandoned his efforts at about 9:30 p.m., left the keys in the ignition, and borrowed Mrs. Martz’s car to go home. He said that there was nothing at all mechanically wrong with his truck at that time. He intended to return the next day and renew his efforts with the assistance of his employees.
[9] He did return at about 7:00 p.m. on the next day. He found the truck unloaded and parked on Mr. Martz’s driveway some 100 feet from the place where it had been stuck. Mr. Martz told him there was something mechanically wrong with the truck. Mr. Redmond started it up. There appeared to be something wrong with the rear housing. He drove it to Mr. Richard Hoover’s garage at the village of Bluevale. Mr. Hoover repaired it at a cost of $4,860.60.
[10] Mr. Hoover testified that he examined the truck shortly after its arrival at his garage and found the rear differential gear completely smashed. He said that there were so many broken parts that it was incapable of repair and worthless as salvage. In addition one of the rear anchor plates was bent. He said that none of the damage was caused by the ordinary operation of the truck or by ordinary wear and tear, and that there was nothing to indicate a manufacturer’s defect in either of the parts. As I understood Mr. Hoover’s evidence, he expressed the opinion that the damage was caused by the truck being rocked back and forth, and in the course of that, the operator shifting the gear from forward to reverse in rapid succession and depressing the accelerator each time the gear was engaged – all in an effort to extricate the truck. He expressed the opinion that it would be necessary to engage in that activity for a continuous period of at least 15 minutes in order to put sufficient stress on the rear differential gear to cause such extensive damage.
[11] Mr. Murphy did not cross-examine Mr. Hoover. Indeed he advised the judge that the defendant agreed with Mr. Hoover’s assessment of the damage and with Mr. Hoover’s opinion as to its cause.
[12] Mr. Cornish rested his case on the evidence of Mr. Redmond and Mr. Hoover.
[13] Mr. Robert Martz, Mr. Mark Warnholz, and Mr. Kenneth Cox testified on behalf of the defendant.
[14] Mr. Martz’s evidence was not clear as to the number of times that Mr. Redmond himself attempted to extricate his truck. He did say however that he was present during those attempts – indeed that he assisted in them – and that Mr. Redmond never rocked the truck back and forth, but rather restricted his efforts to attempting to drive the truck forward. He said that the truck simply would not move. Like Mr. Redmond, he insisted that there was no indication at all of any mechanical damage following Mr. Redmond's efforts and the efforts of the neighbour with the tractor, and he said that if there had been any damage he would have been aware of it.
[15] Mr. Martz went to work the next day. He returned from work in the late afternoon. Mrs. Martz was in the driveway talking to Mr. Kevin Denstedt, a neighbour, and to the driver of a cement truck that was parked nearby. Mr. Martz joined them. They discussed the fact that Mr. Redmond’s truck was still stuck. Mr. Martz decided to telephone Mr. Redmond and suggest that the cement truck be enlisted to pull Mr. Redmond’s truck out. (The cement truck was apparently loaded with about 20 tons of concrete). Mr. Redmond himself talked to the driver on the telephone. Following the conversation, the driver instructed Mr. Denstedt to get into Mr. Redmond’s truck, put the gear in neutral, and steer the truck as he pulled it out. The driver then hitched the cable that was still attached to the front of Mr. Redmond’s truck on to the rear of the cement truck and, in Mr. Martz’s words, “walked Mr. Redmond’s truck out of there like a kid pulling a kiddie car”.
[16] The truck driver told Mr. Martz that there was something broken on Mr. Redmond’s truck and he then drove off.
[17] It would seem that Mr. Martz then questioned Mrs. Martz about the apparent damage to Mr. Redmond’s truck. In any event, Mr. Martz proceeded to testify at considerable length as to what Mrs. Martz told him about it. He gave that testimony in purported response to questions that Mr. Murphy put to him in examination in-chief. Mr. Murphy made no attempt to restrain him from giving that hearsay evidence. Mr. Cornish raised no objection. The trial judge made no comment at any time. Mr. Martz said that Mrs. Martz told him that a truck belonging to the Jones Feed Company came to the premises earlier on that afternoon when Mr. Martz was still at work. She told Mr. Martz that the driver and a fellow employee who was with him had attempted to pull Mr. Redmond’s truck out and that while they were in the process of doing so, she, Mrs. Martz, heard a cracking noise from Mr. Redmond’s truck. She said that they were not successful in pulling Mr. Redmond’s truck out, and that at some stage they simply left.
[18] Mr. Cornish established in cross-examination that Mrs. Martz was ill at the time of the trial, and was not able to attend to testify.
[19] Mr. Mark Warnholz was the driver of the Jones Feed Company truck. He testified that he went to Mr. Martz’s home only because his dispatcher sent him there for the purpose of pulling Mr. Redmond’s truck out. He said that when he arrived Mrs. Martz and her neighbour, Clare Denstedt, were actually throwing wood off the Redmond truck. He hooked the cable that was attached to the front of Mr. Redmond’s truck on to the front of his truck. Mr. Denstedt got into Mr. Redmond’s truck, presumably to assist in some way. Mr. Warnholz made two separate attempts to pull the truck out. He failed. Then Mr. Denstedt and Mrs. Martz threw more wood off and Mr. Warnholz tried again. And again he failed. He testified that he was unable to even move the Redmond truck, and so there was no rocking back and forth. He said that he never heard any cracking noise at any time, acknowledging however that he would not have been able to hear any such noise when seated in the cab of his own truck.
[20] Mr. Cox was the last witness to testify. He is the manager of the defendant. Mr. Cox was called to give the court the benefit of his interpretation of the relevant provisions of the motor vehicle insurance policy (a standard automobile insurance policy – Exhibit #6) that had been issued to Mr. Redmond. While I am of the view that most of his evidence was inadmissible, certainly counsel – and I think the trial judge as well – thought otherwise, and so it is necessary for me to summarize it. Before I do however, I should digress to precisely define the issues in this case.
[21] As I have said, the sole defence was that the policy did not insure against the loss in question – in short that there was no coverage for the loss. Counsel agreed that the validity of that position depended upon the proper construction of two sections of the policy. The two sections read as follows:
Section 6 – Direct Compensation – Property Damage
6.1 This section of your policy covers damage to the automobile … caused by another person’s use or operation of an automobile in Ontario.
The coverage under this section applies only if the accident takes place in Ontario and at least one other motor vehicle involved is insured under a motor vehicle liability policy.
6.2 We will pay the cost of damage to the automobile … arising from an accident for which another person would have been legally responsible in the absence of section 263 of the Insurance Act (Ontario).
7.1.1 We agree to pay for a direct and accidental … damage to a described automobile caused by … fire, theft or collision … This section applies only to the extent that a claim for damage to an automobile … would not be covered by section 6, Direct Compensation – Property Damage Coverage …
7.1.2 – B – Comprehensive
We will pay for losses, other than those covered by collision or upset.
7.2.1 We will not cover … losses, unless they are caused by fire, theft or vandalism, … consisting of, or caused by mechanical fracture or breakdown of any part of the automobile.
[22] In ordinary parlance, Mr. Redmond was entitled to indemnity for the cost of the repairs (subject only to any applicable deductible) if the damage was caused by the fault of another person in the use or operation of his motor vehicle. If the damage was not so caused, then, in the circumstances of this case, he was only entitled to indemnity (subject to any applicable deductible) if the damage was caused by vandalism, or if the damage did not consist of or was not caused by mechanical fracture or breakdown of any part of his truck.
[23] I return now to my summary of Mr. Cox’s testimony.
[24] In his examination in-chief, Mr. Cox confined the bulk of his evidence to an interpretation of section 7 of the policy. He testified that the damage to Mr. Redmond’s truck consisted of mechanical fracture or breakdown. He said that it did not matter whether Mr. Redmond or someone else “was rocking the truck back and forth causing this damage” because the conduct in question, on any interpretation of the facts, could not be classified or defined as vandalism. Therefore, the exclusion provided by section 7 applied. Mr. Cox then went to considerable length to explain what the word “vandalism” meant in the context of the policy in question, and in the course of all of that, portions of two dictionaries were actually filed as exhibits!
[25] Mr. Murphy did however direct one question to Mr. Cox, apparently with section 6 of the policy in mind. The question is found at page 133 of the transcript.
Question – Now if Mr. Martz or someone else, trying to pull the truck out, damaged it, where would Mr. Redmond go for his compensation?
Mr. Cox replied that he would assume that Mr. Redmond would “look to the person doing the damage”.
[26] While Mr. Cornish devoted most of his cross-examination to the definition of vandalism, theft, attempted theft, and the meaning of the phrase “consisting of or caused by mechanical fracture or breakdown”, he did address the provisions of section 6 as well. Mr. Cox insisted that there had to be an impact between some part of Mr. Redmond’s truck and another motor vehicle, or at least an accident between the two motor vehicles, before section 6 provided coverage. He said that, on any interpretation of the facts, there was neither an impact nor an accident with either the feed truck or the cement truck.
[27] On that state of the evidence the trial judge said this, with respect to the facts.
The facts are not really in dispute.
The plaintiff owned a 1994 International truck which was capable of carrying firewood. In March 2000, the plaintiff delivered a load of firewood to the farm of Robert Martz. As the plaintiff was backing the truck into the area where Mr. Martz wanted the firewood placed, the truck sank into soft ground. When the plaintiff attempted to move the truck, he was unable to do so. After making one unsuccessful attempt to be pulled out by a neighbour’s tractor, the plaintiff decided to leave his truck where it was until the next evening. When the plaintiff left for home that evening, the truck was not moveable and there was not any noise coming from the rear axle.
The plaintiff left the keys in the truck. He did not give any instructions to Mr. Martz or authorize him to do anything with the truck. The plaintiff told Mr. Martz that he would be back the next evening to try to remove his truck from the soft ground.
The next day, in the absence of the plaintiff and Mr. Martz, a cement truck driver (without any request or authorization by the plaintiff) came into the Martz yard and pulled the plaintiff truck out. Prior to the cement truck becoming involved, the operator of a feed truck had tried unsuccessfully to pull the plaintiff’s truck out.
When the plaintiff arrived at the farm of Mr. Martz’s the next evening, he found his truck unstuck and sitting in the driveway approximately 75 or 100 feet from where it had been stuck. The plaintiff climbed into the truck and started it. At that time he heard a clicking noise coming from the hub in the middle of the rear axle of the truck. As the plaintiff drove his truck out of the Martz yard, he heard more clicking.
Mr. Richard Hoover, a licenced automotive and truck technician, repaired the plaintiff’s truck. Mr. Hoover testified that the differential was completely damaged. Mr. Hoover stated that normal driving would not cause this type of damage. It was Mr. Hoover’s opinion that the damage was caused by the truck being rocked back and forth numerous times when it was stuck.
[28] The trial judge then disposed of section 6 of the policy by simply declaring that it had no application because “there was no accident involving another motor vehicle”.
[29] He devoted the balance of his Reasons to a consideration of whether the damage was caused by vandalism and, if it was not, then whether the exclusion applied. In the course of all of that, he stated that it did not matter who was “sitting in the cab of Mr. Redmond’s truck when it was being rocked back and forth” because “the damage to the rear differential was caused by an internal factor making it a mechanical fracture or breakdown”.
[30] My concern with the trial judge’s Reasons relates only to the way in which section 6 of the insurance policy was dealt with. It is not correct to say that the application of that section is dependant on proof of an impact or an accident with another motor vehicle. It is dependant only upon proof that the damage was caused by the use or operation of the other motor vehicle in circumstances that render the operator of the other motor vehicle liable in whole or in part, absent any statutory provision that grants immunity from liability. The word “accident” as it appears in section 6 is simply a compendium for “use or operation of an automobile”.
[31] In my view, it was open to the trial judge to find on the evidence that the rocking back and forth and the use of the gears in that process would not have occurred but for the use of either the feed truck or the cement truck. If that finding had been made – and certainly it is not for me to say that it should be made – then it would have been necessary for the trial judge to apply the two part test enunciated by the Supreme Court of Canada in Amos v. Insurance Corp. of BC [1995 66 (SCC), [1995] 3 SCR 405] to determine whether the damage was caused by the use or operation of either or both of these motor vehicles and if he was of the view that both parts of the test were satisfied, then he would have been entitled to find in Mr. Redmond’s favour, notwithstanding that the direct cause of the damage was the prolonged use of the gears in the course of the rocking.
[32] In my view therefore, the trial judge erred in law in his construction of section 6 of the policy, and because of that he failed to direct his mind to the evidence relevant to its proper application. It is impossible for me to address that evidential issue, and so I am compelled to order a new trial. Mr. Redmond should have his costs of this appeal. I fix the costs at $500.00 together with assessable disbursements and the applicable G.S.T. The costs of the first trial will be left to the discretion of the judge presiding at the new trial.
[33] I should say, perhaps, that Mr. Cornish submitted at some length that the trial judge erred as well in his interpretation of the exclusion set forth in section 7 of the motor vehicle policy. I say nothing at all about those submissions. They may be renewed before the judge presiding at the new trial, and he will be entirely free to deal with them in the way that he thinks they should be dealt with.
Mr. Justice C. C. Misener
Released: January 7, 2004
COURT FILE NO.: 21-2002 County of Huron DATE: January 7, 2004
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
WAYNE REDMOND Appellant
- and –
WEST WAWANOSH MUTUAL INSURANCE COMPANY Respondent
REASONS FOR JUDGMENT
MISENER, J.
Released: January 7, 2004