The tragic case of a mother who was struck and left paralyzed by an errant bullet fired from a van during a drive-by shooting was recently considered by the Ontario Court of Appeal: see Russo v. John Doe (2009), O.R. (3d) 138 (C.A.). The mother sued the driver of the vehicle as well as her own automobile insurer pursuant to the OPCF 44R uninsured motorist endorsement. At issue was whether the injuries arose "directly or indirectly from the use or operation of an automobile".

The Court held that the issue had to be determined by applying the "purpose test" and the "causation test". The "purpose test" asks whether the claim is in respect of an inadequately insured tortfeasor whose fault occurred in the course of using a motor vehicle as a motor vehicle and not for some other purpose. The Court held that the lower court judge was wrong when he considered the subjective reasons of the vehicle owner for driving the car and the criminal activity for which it was used. The purpose test, in this case, was met because the car was used to transport the assailants and their guns to the restaurant. This was an ordinary and well-known use of an automobile.

The causation test asks whether there was an unbroken chain of causation linking the conduct of the motorist as a motorist to the injuries in respect of which the claim is made. The Court stated that while the driver was clearly liable to the plaintiff for his involvement in the drive-by shooting, the bodily injury, as opposed to the legal liability, must arise directly or indirectly from the use or operation of a motor vehicle. The Court observed that both insurer and insured would have no reasonable expectation that the acts of the tortfeasors would be covered simply because they include the use of a motor vehicle. The court relied on the analogy of bank robbers using a getaway vehicle. Here the injuries resulted from the shooting, which was a distinct and intervening act completely independent from the use or operation of the van.

Because the causation test was not met, the Court held that the injuries were not covered by the uninsured motorist endorsement.

If you have any questions or require any additional information please contact:

Ramon Andal
Insurance Lawyer
Tel: 905.276.0415
Email: randal@kmblaw.com

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