How Do You “Indirectly” Use a Vehicle?

As of press deadline, the Supreme Court of Canada is mulling over two cases that will potentially expand litigation arising out of injuries related to the “indirect” use of an automobile.

Let us say straightaway that whether it’s Canada’s high court that fixes the legal sophistry contained in s. 239(1)(a) of the Ontario Insurance Act, or whether it’s the province’s legislature, someone should eliminate the word “indirect” from the legislation.

Insurers should not be expected to provide auto insurance coverage for injuries that minimally relate to the purpose of a vehicle. The ambiguity of s.239 of the act – which provides coverage for loss, injury or damage “arising directly or indirectly from the use or operation of an automobile” – has no place in any law. Failing to remove the word “indirect” from the legislation will simply breed more cases with absurd situations such as those found in Herbison v. Lumbermens Mutual Casualty Co. and The Citadel General Assurance Company v. Michael Vytlingam.

Let us apply the Doctrine of Reasonable Expectations in favour of insurers in these two cases. Most reasonable people, for example, would see Herbison as nothing more than a hunting accident masquerading as an “auto” accident. An Ontario hunter used the headlights of his parked pickup truck to shoot at what he thought was a deer. Instead, he hit his fellow hunter in the leg, leaving his fellow hunter permanently disabled. The wounded hunter sued under the shooting hunter’s vehicle insurance policy, saying the accident was “indirectly” related to the use of the pickup truck’s headlights. The Ontario Court of Appeal agreed, ordering the shooting hunter’s insurer to fork over Cdn$830,000.

In its decision, the Ontario Court of Appeal relied on the use of the term “indirect” in Ontario’s insurance act. That’s why the word should be taken out of the act altogether, so courts won’t have to wrestle with the issue of whether the gun wounded the fellow hunter, or whether the vehicle’s lights “indirectly” wounded the hunter.

The court’s decision in Vytlingham is no less counterintuitive. Two teens drove some boulders to an overpass in North Carolina. They threw the rocks over the overpass, striking the windshield of a man driving his family’s Ford Explorer back home from a Florida vacation. The 18-year-old driver of the Ford Explorer suffered catastrophic injuries and sued against the auto policy of one of the rock-throwers, arguing that the rock-throwers used a vehicle to transport the boulders to the overpass.

Again, it seems a stretch to describe the Vytlingham case as an “auto” accident that an insurance policy would be expected to cover. The vehicle that transported the boulders did not injure the driver of the Ford Explorer; the boulders did. So if an instrument other than a vehicle causes the damage, then why should the vehicle insurers’ policies be engaged at all?

Insurers can’t blame plaintiff lawyers for asking the courts to apply the wording contained in the legislation. But if the term “indirect” isn’t at the very least further defined, then the causal chain is more or less destroyed. And any student of logic can tell you that once you destroy a causal chain, anything follows – including unpredictable court decisions.

In the absence of any clarity about what “indirect” means, what’s to stop a clever lawyer from extracting policy coverage in the following situation: a car is sitting in the garage, a walnut falls from a nearby tree, hits the car and hits a bystander in the eye? Is this an “auto” accident? If so, how would insurers plan for these kinds of wacky scenarios when it comes to underwriting auto policies?

The insurance industry shouldn’t rely solely on the courts to clarify the ambiguity. Instead, they should lobby politicians to eliminate the word “indirect” from the legislation. British Columbia doesn’t use the word in its Insurance Act (it only speaks to the use of a vehicle), and Ontario shouldn’t either.