Neutral Citation: 1992 ONICDRG 47

File No. A-000926

ONTARIO INSURANCE COMMISSION

BETWEEN:

GORDON MCALLISTER

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

This case deals with the consequences of a shocking and horrible crime. The Applicant's wife, Jacqueline McAllister, was murdered during the course of an armed robbery of the couple's motor home. The Applicant and his wife were sleeping in the motor home when the crime occurred.

The Applicant applied for funeral expenses and death benefits under Regulation 273/90 (the "No-Fault Benefits Schedule") under the Ontario Insurance Act, R.S.O. 1990, c. 1.8. Every motor vehicle insurance policy provides for no-fault benefits, including funeral expenses and death benefits, as set out in the No-Fault Benefits Schedule.

The Applicant did not receive benefits under the policy, since the Insurer took the position that the death of the Applicant's wife did not result from an accident, within the meaning of the No-Fault Benefits Schedule.

The Applicant applied for mediation of his dispute with the Insurer. The mediation was unsuccessful, and the Applicant subsequently applied for the appointment of an arbitrator.

The issue to be determined at the arbitration was:

Was the death of the Applicant's wife, Jacqueline McAllister, the result of an accident within the meaning of the No-Fault Benefits Schedule, and is the Applicant accordingly entitled to death benefits and funeral expenses?

Result:

The decision is:

The Applicant is not entitled to death benefits and funeral expenses since his wife's death was not the result of an accident within the meaning of the No-Fault Benefits Schedule.

The Process:

An oral hearing was not held in this case. The parties agreed to waive an oral hearing, pursuant to the provisions of sections 10 and 14 of the Dispute Resolution Practice Code. I have reached my decision in this case based on the written materials filed by the parties.

Parties and Representatives:

Applicant:

Gordon McAllister

Applicant's

Drew S. Gunsolus

Representative:

Barrister & Solicitor

Insurer's

Harry P. Brown

Representative:

Barrister & Solicitor

Documents before the Arbitrator:

Application for Appointment of an Arbitrator in Form 4, dated January 24, 1992

Response in Form 5, dated February 12, 1992

Written submissions of Applicant, received September 30, 1992

Written submissions of Insurer, received October 2, 1992

Response by Applicant to submissions of Insurer, dated October 5, 1992

Response by Insurer to submissions of Applicant, dated October 14, 1992

Evidence and Submissions:

The Facts:

The tragic facts in this case are not in dispute. The Applicant and his wife owned a motor home, purchased in April 1991. The vehicle was purchased in contemplation of a trip to Winnipeg, to visit relatives.

The Applicant and his wife lived in Lindsay, Ontario. They left Lindsay on June 27, 1991, and travelled approximately 300 miles, north and then west along Highway 17. Between 6:00 and 7:00 of the evening of June 27th, they stopped at a rest area on Highway 17, intending to have supper and relax. After supper, they decided to stay overnight, since they were both tired.

The Applicant and his wife went to bed at about 10:00 p.m. At about 1:00 a.m., they were awakened by someone banging on the door of the motor home, who identified himself as a police officer. He shouted that the Applicant and his wife would have to move the motor home out of the area, as no overnight camping was allowed, and asked to be let in. Mrs. McAllister opened the back door of the motor home, and was confronted by a man with a gun in his right hand, carrying a flashlight and what looked like a nightstick in his left hand. He demanded all of the couple's money, and told them he would kill them. The Applicant and his wife turned over all their money. The gunman repeated that he was going to kill the couple, and then shot and fatally wounded the Applicant's wife.

Mr. McAllister immediately jumped out of the front door on the driver's side of the vehicle. The gunman shot at the Applicant three or four times and left him for dead, on the ground beside the vehicle.

The gunman exited the vehicle by the rear door. As he was leaving, he saw another car in the rest area, stopped by the washrooms. The gunman shouted at the driver, who was standing beside the open car door, "Have you got a problem, buddy?" The driver replied, "No, no problem". The gunman then ran towards the car and shot and killed the driver.

The gunman escaped in his own vehicle. The Applicant drove out to the highway for help, and eventually returned to Lindsay by air ambulance. He was hospitalized for eight days, to remove bullets from his back and foot.

The Applicant claims funeral expenses and death benefits in respect of his wife's death, under sections 10 and 11 of the No-Fault Benefits Schedule.

Submissions of Applicant:

The Applicant's counsel submitted that the death of the Applicant's wife was the result of an accident, within the meaning of that term, as it is defined in the No-Fault Benefits Schedule.

Counsel cited case law definitions of the word "accident", which refer to an unexpected or unforeseeable event. Counsel submitted that the law is that the expectation of the victim determines whether or not a particular incident can be considered an accident.

Counsel submitted that in this case, the death of Mrs. McAllister should be considered the result of an accident, since it was not expected, provoked or knowingly risked by her.

Counsel further submitted that Mrs. McAllister's death involved the use or operation of an automobile. Counsel submitted that the courts have construed the term "use" very broadly. In this case, the Applicant and his wife were using the motor home for one of the purposes for which it was specifically intended: that is, to sleep in. Sleeping in the vehicle constitutes part of its normal use and operation.

Submissions of Insurer:

The Insurer submitted that the Applicant's death is not the result of an accident. Counsel for the Applicant referred to dictionary definitions of the term "accident" and also referred to the statutory definition. Counsel submitted that the definition imposes a causal connection between the injury suffered and the use or operation of the automobile.

Counsel referred to American case law which discusses the causal connection between the injury, and the use and ownership of the automobile.

Counsel also referred to Canadian case law, and Canadian decisions.

Counsel submitted that, in the present case, the death of Mrs. McAllister did not arise as a consequence of the ordinary use of the vehicle, but because of an intervening criminal act. The fact that the murder occurred in the motor home is not sufficient to establish a causal connection between the use of the vehicle and the death of Mrs McAllister.

Counsel for the Insurer submitted that Mr. McAllister's recourse in this case is to seek compensation from the Criminal Injuries Compensation Board, under the Compensation for Victims of Crime Act.

Findings:

The Applicant claims funeral expenses and death benefits under sections 10 and 11(1) of the No-Fault Benefits Schedule. Those sections provide as follows:

Section 10

The insurer will pay with respect to each insured person who dies as a result of an accident funeral expenses incurred up to $3,000 if Optional Benefit 1 has not been purchased, and up to $7,500 if it has been purchased,

Section 11

(1) If, as a result of an accident, an insured person dies within the benefit period set out in subsection (3), the insurer will pay with respect to the insured person, if Optional Benefit 1 has not been purchased.

(a) $25,000 to his or her spouse, if the deceased is survived by a spouse who was his or her spouse at the time of the accident;

(b) $25,000 to his or her dependants, if the deceased is survived by any dependant who was a dependant at the time of the accident and is not survived by a spouse who is entitled to a benefit under this section;

(c) $10,000 to each of his or her surviving dependants who was a dependant at the time of the accident; and

(d) if, at the time of the accident, the deceased was a dependant, $10,000,

(i) to the person upon whom the deceased was dependent or, if that person is dead, to the surviving spouse of that person if the surviving spouse was the deceased's primary caregiver, or

(ii) to the other surviving dependants of the person upon whom the deceased was dependent if that person and his or her spouse are dead.

The sole issue before me in this case, is whether the shocking and tragic death of the Applicant's wife is the result of an accident.

The term "accident" is defined at section 2 of the No-Fault Benefits Schedule as follows:

"accident" means an incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury or causes damage to any prosthesis, denture, prescription eyewear, hearing aid or other medical or dental device;

(emphasis added)

Therefore, in order to find that benefits are payable, I must be satisfied that the incident leading to Mrs. McAllister's death:

(1) involved the use or operation of an automobile, and

(2) that use or operation caused, directly or indirectly, the incident.

Use or operation:

Counsel for the Applicant submitted that, at the time of the incident, the Applicant and his wife were utilizing the motor home in a manner consistent with its normal use or operation. The motor home was intended and designed to be used for sleeping and, at the time of the incident, the Applicant and his wife were sleeping in it.

I agree that sleeping in a motor home is a normal use of such a vehicle. I find that a motor home such as that owned by the Applicant is designed to be normally used for more than one function or purpose.

On the one hand, it may be used as a temporary dwelling or residence. It would not be inconsistent with this use to park the vehicle in one spot and use it as summer vacation accommodation.

On the other hand, the motor home is a self-propelled motor vehicle which can be utilized and operated as any other automobile. The driver of the motor home must have a valid driver's license, and the vehicle itself must be validly licensed and roadworthy, and insured under a standard automobile insurance policy. The vehicle may not be driven, used or operated as an automobile unless automobile insurance coverage has been obtained, as required under the Insurance Act.

Automobile insurance is obtained to provide coverage for accidents which arise as a result of the vehicle's ordinary use as an automobile, and not in connection with its other potential uses.

In this case, I find that the robbery and murder of Mrs. McAllister arose in connection with the use of the motor home as accommodation, and not as a result of its use as an automobile.

In the case of Watts v. Centennial Insurance Company, cited in Whitehead v. Zozula (1991) B.C.J. (B.C.S.C.), the meaning of the term "use" in connection with a motor vehicle was discussed. Mr. Justice Campbell of the Supreme Court of British Columbia held that:

Use must involve, in the context in which is employed here some act coming within the above definitions, the working, manipulation, operation, handling or employment of the vehicle, not just merely making use of it by riding in it.

(emphasis added)

In the case of Whitehead v. Zozula (supra), the plaintiff was injured while entering a vehicle, as a result of the discharge of a rifle which was lying on the seat of the vehicle. The judge in that case held:

In the case at bar, the vehicle had been used to transport the weapon in question but it cannot be said on the facts here that there was any real connection to any use or operation of the pick-up truck and the firing of the weapon which caused the death.

In summary, I find that the murder of the Applicant's wife did not involve the use or operation of a motor vehicle, within the meaning of the legislation.

Causation:

In this case, if benefits are to be awarded, I must find that the incident in which Mrs. McAllister was killed not only involved but was actually caused, directly or indirectly, by the use or operation of the vehicle.

In the present case, the manner in which the motor home was being used or operated did not cause the murder, either directly or indirectly. The murder was the result of a criminal act which had nothing at all to do with the use or operation of a vehicle. The vehicle was merely the location of the crime: a crime which could easily have taken place in a dwelling place or elsewhere, without reference to the use of a motor vehicle. For example, the murder might well have taken place while Mr. and Mrs. McAllister were camped in a tent beside the vehicle. The vehicle served as the mechanism for transporting the couple to the location where the crime ultimately took place. The use of the vehicle did not in itself cause the crime.

In this case, the Applicant may be able to seek redress pursuant to the provisions of the Compensation for Victims of Crime Act.

However, for the reasons set out above, I find that the Applicant is not entitled either to death benefits or funeral expenses under the No-Fault Benefits Schedule.

Order:

1. The Applicant is not entitled to death benefits or funeral expenses under the No-Fault Benefits Schedule.

2. The Applicant is entitled to the expenses that he has incurred in respect of this arbitration hearing, in accordance with Schedule 1 of Regulation 275/90.

December 3, 1992

Frederika M. Rotter

Senior Arbitrator

Date