Drive-by shooting injury not covered by auto policy

A catastrophically injured victim of a drive-by shooting is not entitled to coverage under the OPCF 44R–Family Protection Coverage Endorsement, the Ontario Court of Appeal has ruled.
Louise Russo walked into a Toronto-area sandwich shop in 2004, when a van with three men drove up to the window of the shop and two men fired guns into the restaurant. Bullet fragments hit Russo’s spine, rendering her a paraplegic.
Russo made a claim under the OPCF 44R–Family Protection Coverage Endorsement that relates to bodily injury caused by an inadequately insured motorist and is contained in the standard automobile insurance policy in Ontario.
Relying on the recent Supreme Court of Canada decisions Citadel General Assurance Co. v. Vytlingham and Lumbermans Mutual Insurance Casualty Co. v. Herbison, a three-judge panel of the Ontario Court of Appeal found that the shooting was a distinct and intervening act completely independent from the use or operation of the van.
“It is not reasonably expected that automobile insurance will cover injuries or death arising from the joint act of a group of tortfeasors simply because one tortfeasor’s involvement in the tortious act consists of operating a motor vehicle,” the decision says.
“Automobile insurance does not cover injuries caused by robbers inside a bank even though the driver of the getaway car may be legally liable as a joint tortfeasor for the damages suffered,” it continues.
“Since the shooting was a severable intervening event from the use or operation of the motor vehicle, the OPCF 44R Endorsement does not apply and Ms. Russo is not entitled to coverage.”