DATE: 20050215
DOCKET: C40712
COURT OF APPEAL FOR ONTARIO
GOUDGE, LANG AND JURIANSZ JJ.A.
B E T W E E N :
MARY ANN LUPSOR
Donna M. Kraft for the appellant, Unum Life Insurance Company of America
Plaintiff (Respondent)
- and -
UNUM LIFE INSURANCE COMPANY OF AMERICA
M. Paul Downs for the respondent, Mary Ann Lupsor
Defendant (Appellant)
Heard: February 4, 2005
On appeal from for the judgment of Justice W.A. Jenkins of the Superior Court of Justice dated August 26, 2003.
BY THE COURT:
[1] Walter Lupsor died accidentally on November 18, 1999. He was insured for accidental death under a group accident insurance policy issued by the appellant. In this action, the respondent Mary Ann Lupsor sued the appellant to recover on the policy for the death of her husband. The appellant defended on the basis of an exclusion clause in the policy that read:
This policy does not cover any losses caused by or resulting from:
#9 – operating a motor vehicle either under the influence of any intoxicant or if your blood alcohol concentration is in excess of 80 milligrams of alcohol per 100 milliliters of blood.
[2] The respondent succeeded at trial. The insurer appeals.
[3] The relevant facts are undisputed. On November 18, 1999, Mr. Lupsor was in his garage working on a Charger motor vehicle, which belonged to his son. One of his hobbies was restoring automobiles, which he did on a regular basis. By lunchtime he had torn apart the dash of the Charger. In mid-afternoon he was seen working on the motor, welding something. Around 5:30 p.m. he went to an auto parts store and returned with a piece of door trim. He then worked late into the night because he wanted to get the car repairs finished.
[4] Sometime after 2:00 a.m. his wife went to the garage and found him on the floor, dead. The doors and windows of the garage were shut. The parties accept the Coroner’s finding that Mr. Lupsor’s death was caused by carbon monoxide poisoning which occurred while he was working on his son’s motor vehicle in a closed garage with the engine running and while his blood alcohol content exceeded 80 milligrams of alcohol in 100 millilitres of blood.
[5] The trial judge found that Mr. Lupsor was not “operating” the motor vehicle and therefore his death did not come within the exclusion clause. For the reasons that follow, we agree with his conclusion. Thus, despite Ms. Kraft’s able argument, we would dismiss the appeal.
[6] We begin with the well-known principle that exclusion clauses should be strictly and narrowly interpreted against the insurer. Coverage clauses on the other hand, should be interpreted broadly. See Zurich Insurance Co. v. 686234 Ontario Limited (2002), 62 O.R. (3d) 447 (Ont. C.A.). This distinction must be kept squarely in mind in considering the applicability of judicial interpretations of coverage provisions to the interpretation of an exclusion clause.
[7] Moreover, unlike this case, many policies couple “use” of an automobile with “operation” of the automobile, so that, for example, coverage is extended to losses caused by the “use or operation” of a vehicle. The distinction between these two is set out in cases such as Stevenson v. Reliance Petroleum Ltd., [1956] S.C.R. 936 at 941. In Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405, the court made clear that adding “use” to “operation” of a motor vehicle captured a broader range of acts than “operation” on its own. While that case dealt with a coverage provision the same reasoning is applicable to an exclusion clause.
[8] Here the insurer has written a clause that excludes only losses caused by operating the motor vehicle. In our view, had the insurer intended to also exclude losses caused by the use of the motor vehicle, it would have included that term as well. Given that the clause is confined to “operating” the motor vehicle, cases involving “use or operation” are of limited help, particularly those that address coverage provisions. Counsel were not able to provide us with any case where the exclusion clause was limited only to losses caused by operating the motor vehicle.
[9] Finally, the meaning of “operating” is informed by the blood alcohol threshold contained in the clause. That threshold is commonly understood as the level above which driving an automobile is prohibited. Viewed in this light, the primary thrust of the exclusion must be taken to be losses caused by driving the motor vehicle with excessive alcohol in the blood.
[10] In this case there is no suggestion that at the time of his death Mr. Lupsor was driving the vehicle or that he intended to do so or even that the vehicle was capable of being put in motion. Rather there was clear evidence that Mr. Lupsor was repairing the automobile. While he must have turned on the engine at some point, that appears to have been at most incidental to what he was doing to the automobile.
[11] This case is to be contrasted with Vijeykumar v. State Farm Mutual Automobile Insurance Co. (1999), 44 O.R. (3d) 545 (Ont. C.A.). That case dealt with a coverage clause and properly applied an expansive approach. Unlike this case, the clause there did not contain a signal that it was focused on driving the automobile. Moreover, the running of the engine in that case was not incidental to the activity being carried on by the insured in connection with the car.
[12] To summarize, this is an exclusion clause which must be interpreted narrowly. It excludes only losses caused by or resulting from “operating” a motor vehicle not from operating or using it. The blood alcohol threshold is that commonly associated with driving suggesting that driving is the focus of the exclusion. Here the insured was neither driving nor intending to drive the vehicle. He was repairing it. We therefore agree with the trial judge that this was not a loss caused by or resulting from operating a motor vehicle. The exclusion clause does not apply.
[13] The appeal is dismissed, costs to the respondents fixed on a partial indemnity basis at $9,000 inclusive of disbursements and G.S.T.
RELEASED: February 15, 2005 “STG”
“S.T. Goudge J.A.”
“Susan E. Lang J.A.”
“R.G. Juriansz J.A.”