Should the victims have been able to collect from their insurance?

Three members of the Vtlingham family (they lived in Mississauga, Ontario) were motoring along an interstate highway in the United States eight years ago when their vehicle was struck by a large boulder dropped from an overpass by two young punks who had nothing better to do with their time. Michael Vtlingham was catastrophically injured. He lost his eyesight, his memory and his independence as a result. The other two members of his family suffered serious psychological harm. The two punks were prosecuted, convicted, and imprisoned.

In Ontario, car owners and their passengers receive statutory no-fault benefits automatically from the insurer of their motor vehicle. The three victims received medical, out of pocket and rehabilitation benefits as per the law in Ontario.

There was no point in suing the two punks for obvious reasons so they naturally decided to seek recompense from their insurer, Citadel Assurance Company Co. The insurer didn’t want to pay so the matter went to the Ontario Court of Appeal. That court made an award of $960,766 plus interest (which would substantially increase the award) and the insurer appealed and the matter ended up in the Supreme Court of Canada.

The claim did not arise from the ownership or directly or indirectly from the use or operation of a motor vehicle driven by one of the punks. What was at issue was whether or not the carrying of the rock to the scene of the crime in the punk’s vehicle fell within the scope of the ordinary activities to which automobiles are used.

For example, if a hunter carries a rifle in his car and the safety is off and his dog’s paw accidentally hits the trigger and the rifle discharges and kills the driver’s passenger, then the victim or his family could collect damages from the insurer of the car. The reason is because the car can legitimately be used to carry a rifle in it.

However, if he carries the rifle in his car for the sole purpose of later getting out of his car with his rifle and shooting someone in a house, the vehicle would not fall into the scope of ordinary activities to which automobiles are used.
It follows that the rock being carried to a crime scene for the purpose of committing a crime related to the rock, would not fall within the scope of ordinary activities to which automobiles are used.

This raises another issue. If the foregoing is correct, would the victim of a man who deliberately aims his car at the pedestrian and runs over him, be able to collect from the driver’s insurance company?

The answer is yes. Admittedly, the driver was committing a crime with his car but the crime took place at the exact location where the car’s fender struck the pedestrian therefore there is a direct link between the car and the victim.

In the case involving the rock, the crime took place on an overpass, outside of the confines of the car. For that reason, there was no a direct link between the car and the victims. If (as an extreme example) the punk driving the car, used the car to push the rock onto the highway below, there would be a direct link between the car and victims.

In the insurance policy, it said in part that …. “the insurer shall indemnify an eligible claimant for the amount that he ... is legally entitled to recover from an inadequately insured motorist as compensatory damages in respect of bodily injury to ... an insured person arising directly or indirectly from the use or operation of an automobile."

The Supreme Court ruled that it was not sufficient to overcome the requirement for an unbroken chain of causation linking the conduct of the tortfeasor (one who commits a wrong) as a motorist to the injuries in respect of which the claim is made. In this case, the relevant tort consisted of dropping the rocks from a highway overpass, not transporting rocks across the countryside. For this reason, the punk driver was not at fault as a motorist. The tort was an independent act which broke the chain of causation. It was an intervening event severable from the use and operation of the punk’s vehicle.

Unfortunately, the victims in the rock case couldn’t apply for compensation from the Criminal Injuries Compensation Board in Ontario because the tort (wrongdoing) didn’t occur in Ontario. This is a sad case where the victims suffered beyond their injuries.