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Failure to Supervise not Covered under Policy
Published in the September 2008 issue of Transportation Notes - View Article
This newsletter has commented on recent jurisprudence from the Supreme Court of Canada regarding the liability of an insurer in connection with torts committed by a motorist and the requirement that an insured’s claim against the insurer is sufficiently connected to the use and operation of the motor vehicle (see Citadel General Assurance Co. v. Vytlingham 2007 SCC 46 and Lumbermen's Mutual Casualty Co. v. Herbison, 2007 SCC 47, End of the Line, November 2007). A recent decision from the Ontario Superior Court of Justice, Kopas v. Western Assurance, has applied these two Supreme Court decisions.
In Vytlingham, the issue was whether two intoxicated men were acting as “motorists” when they drove to an overpass with a large boulder in their vehicle and threw the boulder off the bridge, thereby injuring the victim travelling on the highway below. In Herbison, the issue was whether a hunter who drove into the woods in his truck, got out of the truck and, mistaking his hunting companion for a deer, shot and injured him, was acting as a motorist at the time of the act. In each case, the Supreme Court held that neither tortfeasor was acting as a “motorist” at the time of the incident. There was no coverage under the respective policies.
In the recent decision of Kopas, a five year old boy was killed when he was struck by a car while walking in a parking lot. The boy was there with his family to spend the day at a “Heritage Festival” and arrived in his father’s car with his father and grandfather. The adults started unloading the car when a train was passing by just outside the parking area. The boy went over to watch it by the chain link fence that separated the parking lot from the train tracks. The boy started back to his father and grandfather, never very far from them as his grandfather kept watch from the car. The grandfather then shouted out a warning but was too late, as another car backed out of a parking space and ran over the boy.
The family’s claims against the driver were settled, with 70% responsibility allocated to the driver and 30% to the boy’s father and grandfather. The boy’s father and grandfather sued the insurer of the father’s vehicle for the costs of defending the crossclaim and sought indemnification for their 30% contribution. The insurer disputed coverage under the policy on the basis that the accident did not involve the “use or ownership” of the father’s vehicle. The judge dismissed the claim at the summary judgment stage on the basis that the use of the father’s vehicle was incidental to the accident and therefore was not covered under the policy.
In arriving at the decision, the judge reviewed a number of cases concerning the scope of coverage of automobile insurance policies and the connection between use and ownership of a motor vehicle and the wrongful conduct giving rise to the plaintiff’s claim. Applying the Supreme Court’s recent articulation, in Vytlingham and Herbison, of the principle that “use and ownership” requires more than “but for” involvement of the insured vehicle in an accident, the judge held that the case at bar raised two questions: 1) whether the “use and ownership” of the vehicle is established because the plaintiffs were unloading their car at the time of the incident; 2) whether the use and ownership of the vehicle is established because the young boy had been transported to the parking lot in the car. It was noted at the outset that loading and unloading a vehicle is part of the ordinary use and operation of the vehicle as is transporting, loading and unloading people.
The judge disposed of the first question by finding that there was nothing negligent about the way in which the car was being unloaded. The plaintiffs were distracted from supervising the boy because they were unloading the car but they could have been doing any number of things that distracted them from supervision, e.g.: buying tickets for the fair or talking to a passer-by. There was nothing careless about the unloading per se. It was the failure to watch the boy that was careless.
With respect to the second question, the judge noted that the “use and ownership” of a vehicle includes taking reasonable care to ensure passengers disembark safely. The requirement “to take care” depends on all the circumstances, and the requirement will be higher when children are involved. The judge found that the boy had navigated his way across the lot to the chain link fence to watch the train and the duty of care associated with disembarking passengers ended when the boy safely arrived at the fence to watch the train. He had then safely “landed” from the car and supervising him thereafter was a duty that arose from the general duty to supervise children, and not a special duty imposed upon a “motorist”. It was held that the use of the father’s vehicle was the means of transportation that brought the family to the scene but it was not otherwise involved. The judge relied on the 2004 Ontario Court of Appeal decision in Greenhalgh v. ING where the court concluded that the driver of a car stranded in a remote area as a result of an accident could not recover from her insurer for her damages suffered as a result of exposure while she tried to make her way to safety from her vehicle. In that case, the Court relied on the following facts to establish a break in causation: the insured had physically left her car; no vehicle had contributed to her injuries; there was temporal distance between the end of the use of the car and the injuries. The Court in Greenhalgh concluded that the problem with the car could be said to have led to the injuries but one could not say that it caused the injuries. The judge in Kopas also reviewed the cases that have found coverage in circumstances involving disembarking children. Some courts have found, on the basis of the facts before them, a strong causal connection between the use and operation of the vehicle and the accident. For example in Lefor (Litigation Guardian of) v. McClure, the Ontario Court of Appeal in 2000 found coverage where a mother dropped off her children at the grandmother’s house and one of the children “darted” out into the street and was hit by a passing vehicle. The Court in Lefor found that there was a clear nexus between the use and operation of the vehicle and the injuries. The vehicle was stopped temporarily. The mother left the motor running to drop off the child. In these circumstances, it could be said that the accident occurred as a result of the use of the mother’s vehicle as a means of conveying passengers from one place to another.
The judge in Kopas noted that the Supreme Court in Vytlingham expressly stated that Greenhalgh is rightly decided and that the cases involving disembarking children were “very fact-specific”. However, it was also noted that in Herbison, the Supreme Court upheld Lefor and observed that it is in the ordinary course of things for a child dropped off on the wrong side of the street to then “dart” onto the other side to the grandmother’s house, with all the foreseeable risks that such a crossing entails. The mother’s post-vehicle conduct in Lefor was so “closely intertwined” with her negligent parking that from the perspective of causation, direct or indirect, the two were not severable.
The judge in Kopas distinguished the case at bar from the circumstances in Lefor and held that the case was closer to Greenhalgh—the deceased child was safely out of the car, had left the vicinity of the car and was at the fence, watching the train; by the time he was returning from the fence, the duties owed to him by his father and grandfather were owed as guardians of children and not as “motorists”.
Kopas v. Western Assurance Co.
[2008] O.J. No. 4057 (S.C.J.).