Canadian Underwriter

Spike’s Revenge

November 30, 2007   by William Blakeney

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An RCMP officer arrived at the scene of a terrible automobile crash where the driver and passenger had both been killed. As he examined the wreckage, a little dog came out of the brush and sniffed around the crashed car.

The officer looked down at the dog and said, “I wish you could talk.” The dog looked up at the officer, barked twice and nodded its head. “Do you understand what I’m saying?” he asked. Again, the dog barked and nodded vigorously.

“Did you see the accident?” The dog indicated that he had. “What happened?” the officer asked.

The dog sat up on his haunches and pretended to hold a beer can in his paw. “They were drinking beer?” asked the officer. The dog barked twice for “yes.”

“What else?” The dog held his paw up to his mouth and pretended to smoke a joint. “They were smoking marijuana?” The dog barked in the affirmative.

Exasperated, the officer asked, “What else were they doing?” The dog leaped up on him and began slathering him with wet doggy kisses.

“You’re telling me that your owners were drinking, smoking dope and

smooching before they crashed?” The dog barked his affirmation. “What were you doing during all this?” “Driving,” motioned the dog.

In the early 1990’s, we were involved in a motion to determine a point of law in a peculiar case called Longarini v. Zuliani. Our insured, Roberto Zuliani was the owner of a German pointer dog named Spike. By all accounts, Spike was a good dog; he was about four-years-old and weighed in at about 45 pounds. On a fateful day in September 1988, Roberto’s son Stefano drove the family car to a friend’s house with Spike in the back seat. Roberto turned off the car and went in to pick up his friend. He left the rear window down part way so that Spike could get some fresh air.

A neighbourhood youth named David Longarini was playing catch football nearby. He went to pick up a football that had landed beside the Zuliani car when Spike stuck his head out and bit him on the face. Spike did not leave the car.

As anyone who has handled a dog bite case can appreciate, they often result in serious infection and scarring. The boy initiated an action against the Zuliani family, claiming damages in the sum of $750,000.

The Zuliani’s homeowners insurer responded to the claim, while their automobile insurer denied coverage on the basis the claim did not involve the use or operation of the vehicle. The two insurers moved for a determination of a point of law on an agreed statement of facts.

It is difficult to determine how the automobile insurer could possibly have need to respond. The car was locked and parked. The key was turned off in the ignition. While Spike apparently had many skills as a hunting dog, they did not extend to driving a car.

The motion was argued in front of Justice Epstein (who subsequently had to rule on the claims of a gentleman named Rene Joly who believed he was a martian). After hearing submissions, she ruled that negligence for Spike’s misdeeds fell exclusively within the ambit of the auto policy. The homeowners policy was not obliged to respond.

In our case, Epstein relied on a decision of the Supreme Court of Canada from the 1950’s (Stevenson v. Reliance Petroleum) to rule that the automobile policy alone should respond. In Stevenson, a gasoline delivery man had allowed a tank to overflow. The spilled gas ignited and destroyed the premises. The Supreme Court ruled the loss fell within the automobile policy and not the general liability policy.

The Court held the expression “use or operation” should convey all accidents which common judgment, in ordinary language, would “attribute to the utilization of a automobile as a means of different forms of accommodation of service.”

Almost 50 years later, the Supreme Court of Canada recognized there could be concurrent causes of liability that would potentially trigger an obligation to respond under more than one policy. (Derksen v. 539938 Ontario Ltd.)

Epstein also based her decision on a case called Boell v. Schinkel. In Boell, the court found the transportation of a dog that jumped out of a window in the path of a motorcyclist fell within the “purpose” test. She held the resulting accident resulted from an “ordinary and well-known activity” to which automobiles are put; transporting their pets.

While there was no issue that Spike regularly tagged along with his owner’s son in the back seat of the car, he obviously was not a “motorist.” The family’s potential liability for the bite, however, lay under the Dog Owner’s Liability Act, and not the Highway Traffic Act. Since the car was turned off and parked, it was effectively a shelter the dog was occupying.

Two years later, the Supreme Court of Canada articulated a test for “use or operation” in Amos v. Insurance Corporation of British Columbia. In Amos, the insured was attacked by a gang of brigands while he was driving along an urban street in East Palo Alto, Calif. He claimed six men surrounded his van, breaking the windows and shooting him when he refused to get out. He was seriously injured as he fled from the scene. The shooters followed him on foot.

While the car was in motion at the time, Amos had not been injured through the negligence of any motorist. He could as easily been shot in a foot pursuit, or inside a building.

The Supreme Court of Canada found in favour of Amos’ accident benefits claim. It observed that while the statutory language should not be stretched beyond its “plain and ordinary meaning,” that it ought not to be given a technical construction that defeats the object and intent of the legislation providing coverage.

The Court noted if Amos had crashed his van while escaping from the scene, there would not have been any question of his entitlement.

The Supreme Court of Canada in Amos proposed that lower courts adopt a two-part “relaxed causation” test to be applied to claims for statutory benefits:

• Did the accident result from the ordinary and well-known activities to which automobiles are put. This has been referred to as the “purpose test.”

• Is there some nexus or causal relationship (not necessarily a direct causal relationship) between the claimant’s injuries and the ownership, use or operation of his vehicle; or is the connection between the injuries and the ownership, use or operation of the vehicle merely incidental or fortuitous? This has been referred to as the “causation test.”

The difficulty with the Amos test is it has subsequently been applied indiscriminately to decisions involving liability coverage. As the courts have stretched the boundaries of what constitutes the indirect use or operation of a motor vehicle, the second part of the Amos test (warning that the use should not be merely incidental or fortuitous) has been largely overlooked.

This year the Supreme Court of Canada released two landmark decisions clarifying the test. These are Citadel General Assurance Company v. Vytlingam and Lumbermens Mutual Casualty Company v. Herbison. Both of these cases were heard in December 2006 with judgments released in October of this year.

In the first of the two cases, Vytlingam was driving along Interstate 95 near Fayetteville, N. C., when two vandals dropped a large boulder from an overpass. The boulder smashed through the windshield of the car and he received catastrophic injuries. His mother and sister who were with him in the car, suffered understandable psychological trauma. The two vandals were convicted and received lengthy prison sentences.

Vytlingam received no-fault benefits exceeding $1 million dollars from their Ontario insurer. (Following the decision in Amos, there was no doubt as to his entitlement). The question for the court was whether or not the
Ontario insurer should be required to pay under the “Inadequately Insured Motorist” coverage. There was no question that the two vandals had insufficient coverage to satisfy a judgment with only $25,000 available. The Ontario Court of Appeal reasoned since the men had driven to the overpass to throw the concrete block off, there was a sufficient nexus with the use or operation of a motor vehicle to bring the claim within coverage.

In the Herbison decision, a hunter by the name of Fred Wolfe was driving to his designated hunting stand before sunrise one morning when he thought

he saw a deer. He stopped and got out of his truck, removed his rifle and loaded it. Seeing a flash of white in the headlights, which he believed to be the tail of a deer, he fired a single shot. Unfortunately, this hit another member of the hunting party who had arrived before him. This was the plaintiff, Harold Herbison.

The Herbisons argued Harold’s injuries arose “directly or indirectly” from the use or operation of the truck, because (a) four-wheel drive trucks are commonly used by hunters to access difficult terrains and drive in the bush, (b) Wolfe was in poor physical condition and dependent on his truck to get to the location of the hunting stand, (c) the muffler on the truck was noisy and probably interfered with his ability to hear the other hunters talking and (d) although Wolfe did not intend to use the headlights on his truck to spot the target, he would not have taken a shot if it had not been for the illumination provided by the lights.

In both instances, the Ontario Court of Appeal held the plaintiffs had suffered injuries arising out of the direct or indirect use or operation of an automobile. They found that as long as there was a sufficient connection between the use or operation of the vehicle and the tortuous events, it could be concluded that the use or operation of the vehicle contributed to the injuries.

In very critical language, the Supreme Court of Canada ruled these facts stretched the definition of “use or operation” past the breaking point.

The Supreme Court of Canada overturned the Court of Appeal in both decisions. In the Vytlingam case, the Supreme Court of Canada noted the OPCF 44R requires the tortfeasor whose conduct is the subject matter of the indemnity claim to be at fault as a “motorist.” The majority judgment of the Court of Appeal did not focus on this issue.

The Supreme Court of Canada considered the “Family Protection” coverage provided by the OPCF 44R endorsement. They found that coverage under the endorsement required that there be liability on the part of a “motorist” who is inadequately insured. The term “inadequately insured motorist” was defined in the policy as “the identified owner or identified driver of an automobile for which the total motor vehicle liability insurance or bonds, cash deposits or other financial guarantees as required by law in lieu of insurance, obtained by the owner or driver is less than the limit of [the claimant’s] family protection coverage…”

The Supreme Court of Canada ruled the Ontario Court of Appeal had mistakenly applied a “but for” test on the coverage issue.

If the court had focused on the elements of the tort that gave rise to the liability, the fact that the concrete was thrown from an overpass did not qualify it as a motoring activity. The throwing of the concrete was an intervening act. For coverage to exist, there must be 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.

In Herbison, the Supreme Court of Canada agreed that Wolfe’s negligent shooting was an act independent of the ownership, use or operation of the truck. The ownership, use or operation of the truck was merely incidental to the injuries sustained by Herbison. There was no nexus or causal connection, direct or indirect, between the injuries and the ownership, use or operation of the pickup truck.

As the Court observed in Reliance Petroleum more than 50 years ago, the problem in all of these cases arises from the fact that the policy specifies that coverage arises from the use or operation of a motor vehicle. The policy could just have easily specified that both use and operation were required.

In a decade noted by peculiar applications of the term “use or operation” of a motor vehicle, these two recent decisions of the Supreme Court of Canada stand out as a beacon of common sense.

William Blakeney has been legal counsel on many of Canada’s high profile property, institutional sexual abuse and environmental cases. He specializes in complex insurance litigation, representing insurers in property & casualty claims, manufacturer’s liability and fire losses.

The Supreme Court decisions can be read online at:


…the problem in all of these cases arises from the fact that the policy specifies that coverage arises from the use or operation of a motor vehicle.