Neutral Citation: 2003 ONFSCDRS 4

FSCO A02-000926

BETWEEN:

MARLON SWABY

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Beth Allen

Heard: November 1, 2002, at the offices of the Financial Services Commission of Ontario in Toronto. Written Submissions Were Received On November 8, 2002.

Appearances: Guy Farrell for Mr. Swaby Todd J. McCarthy for Allstate Insurance Company of Canada

The Applicant, Marlon Swaby, claims he was injured in a motor vehicle accident on December 6, 2001. Allstate Insurance Company of Canada ("Allstate") denied his applications for accident benefits claimed under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Swaby applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Was the Applicant injured as a result of an "accident" as defined in subsection 2(1) of the Schedule?
The parties did not speak to expenses. I encourage them to resolve this issue, but failing that, I may be spoken to.

The Applicant is precluded from proceeding to arbitration on the basis that he was not injured as a result of an "accident" as defined in subsection 2(1) of the Schedule.

Factual Background:

The basic facts in this case are not in dispute. The Applicant's counsel agreed to the factual account presented by the Insurer's counsel in the Insurer's written submissions. The hearing proceeded by way of both oral and written arguments.

The Applicant was shot in the leg and had his throat cut by unknown assailants on December 6, 2001. The parties seek a ruling as to whether the facts of that incident constitute an "accident" within the meaning of subsection 2(1) of the Schedule.

On the day of the incident, the Applicant had parked his vehicle in a school parking lot. He sat in his car with the engine running while he awaited the arrival of a friend who was going to give him a lead for a job. While he was waiting, he opened the driver's side door of the car and put his leg outside to examine the door panel. Earlier that day he had purchased two door speakers and was inspecting the door to determine how they might be installed.

The Applicant was then approached by an individual who told him that he wanted the Applicant's car and ordered him out of the car. The Applicant attempted to close the door on this person but he grabbed the Applicant and attempted to drag him out of the car. The Applicant attempted to drive away, but was unable to do so.

A second individual approached the Applicant's car and put a knife to the Applicant's throat and ordered him out of the car.

As it turned out, the Applicant's throat was cut and he was shot in the upper left leg. He lost consciousness and later awoke in nearby bushes. A passerby found the Applicant and called an ambulance. He was transported to Sunnybrook Hospital where he received stitches to his throat and left thumb and underwent surgery on his left femur.

Parties' Arguments:

The Insurer's Arguments:

The Insurer argues that the incident that resulted in the Applicant's injuries has been excluded from being viewed as an accident by the legislative narrowing in the 1996 Schedule of the meaning of "accident" to include only incidents where an automobile has directly caused an impairment.

The broader definition in subsection 2(1) of the predecessor 1994 Schedule² states:

"accident" means an incident in which, directly or indirectly, the use or operation of an automobile causes an impairment or causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device. [emphasis added]

Subsection 2(1) of the current 1996 Schedule states:

"accident" means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device. [emphasis added]

Allstate argues that the removal from the current definition of the words "or directly" reflects the legislative drafters' intention to narrow the scope of those incidents that will be included as accidents.

In argument, Allstate's counsel reviewed the case law that involved various types of assaults associated with automobiles. He pointed out that in the majority of assault cases, it was held, with the narrowing of the scope of coverage, that the incidents causing the injuries were not accidents.

The Karshe³ case involved a taxi driver who was dragged outside an apartment building between the building and his taxi, and physically assaulted with brass knuckles by one of his two passengers. The Arbitrator found that the incident was not an accident, but was rather the result of the intervention of a new, independent source other than an automobile, that being the brass knuckles. Similarly, in the Sarkissian⁴ case where the applicant was shot to death in an underground parking garage while working on his car, the Arbitrator found, even if theft was the motive behind the applicant's death, that the direct, intervening cause of death was the gunshot.

In the Kumar⁵ case, a taxi driver was struck on the head by a passenger who left the vehicle, after which the taxi rolled into a ditch with the taxi driver in it. The Director's Delegate, upholding the arbitration decision, concluded that the taxi provided the opportunity, location and motivation for the assault, but did not directly cause the taxi driver's impairments. The Director's Delegate also found in the Elensky⁶ case that coverage did not extend to a circumstance where a truck driver who, after stopping his truck to get directions, was confronted by two men upon returning to his truck, dragged into bushes and struck with the butt of a gun causing him to lose consciousness. After regaining consciousness, he attempted to get into his truck and was shot but was able to put the truck into gear and escape. Upholding the Arbitrator's decision, the Director's Delegate found that the truck brought the driver to the location, provided a robbery target and ultimately allowed him to flee. The truck played a role in the series of events, but that was not sufficient to bring the incident within the scope of an accident as defined in the Schedule.

In the Chisholm⁷ decision, the plaintiff was shot in a drive-by shooting while he was stopped in his vehicle at an intersection. The court held that even accepting that the car was a cause of his impairments, the gunshot was a later intervening act, a direct cause of the plaintiff's impairment, and not the use of his car.

Allstate's counsel distinguished the case before me from the Liu⁸ case, an assault case in which a passenger on a tour bus heading for Casino Rama was injured by being pistol-whipped by an assailant. The Arbitrator found that the assailants took control of the bus and used it as a moving prison. She held, in the unique circumstances of this case, that both the bus and the gun wielded by the assailant who pistol-whipped the applicant, were both direct causes of the applicant's injuries. The Arbitrator found that the pistol-whipping was not a

..later intervening act [which would break the chain of causation] but an integral part of a well-calculated, premeditated plan to both overtake the bus and rob its passengers. Far from being an intervening act, the violent behaviour by the assailants was an integral part of their use of the vehicle.

Allstate's counsel submitted that the Applicant's car, in the case before me, was in no way used as a weapon against him as the Arbitrator found in Liu.

Allstate relied on the test enunciated in Heredi,⁹ a recent Supreme Court of Canada case (a highway traffic case on appeal from the Court of Appeal for Saskatchewan) involving the injury on a bus of a passenger with crutches. It was undisputed that the bus driver operated the bus "in such a manner as to cause [the passenger's] crutches to jar her right shoulder, thereby causing injury." The Court considered the requirement under Saskatchewan highway traffic legislation that damages claimed must be "damages occasioned by a motor vehicle."

The Court held:

..the dominant feature of the facts is that the damage was caused by a motor vehicle. The presence of the vehicle was not in any way ancillary to the damage complained of. Instead, it was the very operation of the motor vehicle itself that, by the parties' mutual admission, centrally caused the damage.

Allstate argued that, unlike the facts in the Heredi case, the dominant cause of the Applicant's injuries in this case was not his car, but rather the gun and the knife - the presence of the car being ancillary.

Following the reasoning in the cases that found the injury-causing incidents beyond the scope of insurance coverage, Allstate's counsel argued that the knife and gun used by the Applicant's assailants, rather than the use or operation of the Applicant's car, directly caused his injuries. According to Allstate, the car was the site of the criminal attack as was the case in Kumar, Sarkissian and Elensky. Therefore, according to Allstate, the Applicant was not involved in an accident within the meaning of the Schedule and accordingly is not entitled to proceed to a hearing into his entitlement to accident benefits.

The Applicant's Arguments:

The Applicant's view is that the definition for an accident under the Schedule is phrased such that it is the "incident" which must directly cause the impairment and does not require that the "automobile" itself be the direct cause. In his analysis, the Applicant's counsel characterizes the incident as "a gunshot (simplistically), a robbery (generally) or, more appropriately and succinctly, a car jacking or automobile theft." He further argues:

The incident in Swaby involves the struggle for possession of the vehicle with possession being the fundamental root cause of use or operation of the vehicle and, as such, it is clear this incident directly involved the use or operation of the vehicle since. Without possession, there could be no use or operation of the subject vehicle. From the facts, the injury would not have occurred but for the struggle for the car.

The Applicant's counsel submits that in those circumstances the automobile was the subject matter of the whole incident.

The Applicant's counsel applied the reasoning in the Liu case. He submits that the gunshot and stabbing in the Swaby case were not

..later intervening acts or an integral part of a well-calculated, premeditated plan to carjack Mr. Swaby's vehicle and integral to the struggle for use of the vehicle between the assailants and Mr. Swaby.

In his submissions the Applicant's counsel pointed to areas of previous Commission and court decisions which leave open the possibility that facts such as those in the Swaby case might be considered to be within the scope of coverage. He found support in the Chisholm and Heredi cases for a shooting being a normal incident of risk for the purposes of insurance coverage.

The Applicant's counsel pointed to the following words in the Chisholm case, namely: "[a]n intervening act may not absolve an insurer of liability for no fault benefits if it can fairly be considered a normal incident of the risk created by the use or operation of a car." He submits that those words leave open the possibility that an insurer can be liable for an injury caused by a shooting if a shooting can be seen as a normal risk created by an automobile. In further support of his position, he points to Chisholm's conclusion that"... road accidents may occur where there is more than one direct cause of a victim's injuries and one of the direct causes is the use or operation of an automobile." The Court in Chisholm held that the gunshot was the only direct cause of the victim's injuries and, adopting the Heredi test, found that "the use or operation of his car is at best ancillary." However, the Applicant's counsel pointed out that the following words in the Chisholm case – "...on the facts pleaded in the statement of claim and accepted in the statement of defence, the drive by shooting is not an incident covered by the 1996 Schedule." [Applicant's counsel's emphasis] - suggest that a shooting might be covered in another fact situation.

The Applicant filed current Toronto police statistics about car jacking incidents to establish that theft involving shootings are a normal risk created by an automobile. He filed a letter from the Toronto Police Service to Mr. Farrell dated October 21, 2002 which cites car jacking statistics for the years 2000 to 2002 (up to October 18, 2002). These statistics reveal there was a total of 245 vehicles reported hijacked during this period, 106 involving the use of firearms. However, the figures actually show a decrease in the number of car jackings, committed both with and without the use of firearms, from 2000 to 2001. The figures are incomplete as to the outcome for 2002 since only part of the year is reflected. The Applicant argues based on those facts that car jackings and the use of firearms are no longer an unusual risk.

According to this argument, the theft of an automobile is "fairly considered a normal risk created by the use or operation of an automobile." He further argues that theft is in fact a risk normally covered under an automobile policy and that, in the facts of the Applicant's case, the shooting and stabbing were not intervening acts but part of a well-calculated, premeditated plan to car jack the Applicant's vehicle and integral to the struggle between the Applicant and the assailants for the use of the car.

In the Applicant's view, the incident causing the Applicant's injuries was an accident within the meaning of section 2(1) of the Schedule.

Reasons for Decision:

For the following reasons I do not agree that the incident resulting in the Applicant's injuries was an accident within the meaning of the Schedule.

Contrary to the Applicant's position, I adopt the view commonly held by judges and Commission adjudicators and find that the definition of an accident requires that the use or operation of an automobile directly cause an impairment. It is not, as the Applicant's counsel argues, the incident generally (the car jacking and car theft in the Applicant's case) that is required to have directly caused the impairment. I find rather that the Applicant's injuries must have been directly caused by the use or operation of his car. I therefore find, in the unfortunate circumstances of the Applicant's case, that his car did not directly cause his injuries, but rather the assault - the stabbing and shooting - were the direct causes of his injuries.

I find that the Black's Law Dictionary definition of "direct cause," as adopted by previous Commission cases and the Court in Chisholm, is applicable to the facts of the case before me, namely: "The active, efficient cause that sets in motion a train of events which brings about a result without intervention of any force started and working actively from an independent source." Chisholm held that even accepting that the car was a cause of his impairments, the gunshot, a later intervening act, was a direct cause of the plaintiff's impairment and not the use of his car.

Mr. Chisholm was shot in a drive-by shooting when stopped in his vehicle at an intersection, while the Applicant was shot and stabbed during a struggle with two assailants intent on stealing his car while he was sitting in his parked car. Although the facts of Mr. Chisholm's case differ in certain respects from those of the Applicant, I find the differences are not material to the enquiry into causation when applying the definition to the facts to determine the direct cause of injury. I find, in keeping with my interpretation of the definition, that the fact that the Applicant was shot and stabbed in a struggle for possession of the car does not affect my finding that the assault was the direct cause of his injuries. I therefore find the analysis employed in Chisholm to be applicable in this case and I conclude that the gunshot and stabbing were intervening acts and the direct cause of the Applicant's injuries.

I do not accept the Applicant's position that the analysis in Lui is applicable to the case before me. The Arbitrator in that case found that the pistol-whipping by the assailant and the bus were both direct causes of the passenger's injuries. She found in the particular circumstances where passengers were imprisoned in the moving bus during a robbery, that the bus was used as a weapon which played a central role in the passenger's injuries. I do not find in the Applicant's case that his automobile was in any way used as a weapon.

I find, as the Director's Delegate found in the Kumar appeal decision, that "the event that set in motion the chain of causation leading to the Applicant's injury was an assault, not the use or operation of an automobile." The Applicant's vehicle provided "the opportunity, location and motivation for the assault, it did not directly cause an impairment."

I accept the view, as the Ontario Superior Court held in Chisholm, that the legislative narrowing of the scope of coverage has as its intention to exclude from coverage incidents, such as criminal assaults, which do not arise in the context of a vehicle's ordinary and well-known use. The Applicant entered evidence of car jacking statistics for the City of Toronto. I find that while this evidence shows that car jackings, with and without the use of firearms, occur in Toronto, it does not establish that injuries by gunshots or stabbings are a risk that is sought to be protected by a motor vehicle liability policy where the use or operation of an automobile has not directly caused an impairment.

For these reasons, I find that the Applicant was not injured in an accident as defined by subsection 2(1) of the Schedule.

EXPENSES:

The parties made no submissions as to expenses pursuant to subsection 282(11) of the Insurance Act. I invite the parties to settle this matter between themselves, failing which they can approach the Commission for an assessment of expenses hearing.

January 15, 2003

Beth Allen Arbitrator

Date