When an Insured seeks to recover damages in respect of bodily injury to or death of an Insured arising directly or indirectly from a tortfeasor’s use or operation of a motor vehicle, the claim must arise through an unbroken chain of causation from the ownership or from the use or operation of a motor vehicle. In this case, two criminals transported boulders to an overpass with their car and dropped them on cars travelling below. The court determined that the fact that the car was used to transport them and their boulders to the scene was not sufficient to create insurance coverage for their actions under their car’s automobile insurance policy.
Citadel General Assurance Co. v. Vytlingam, 2007 SCC 46, Supreme Court of Canada, McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ., October 19, 2007
The Insureds, Ontario residents, were driving along the Interstate 95 in North Carolina when their vehicle was struck by a large boulder dropped from an overpass by two “local thrill seekers…who were high on alcohol and drugs.” One of the Insureds received catastrophic injuries as a result of this crime, and his mother and sister suffered serious psychological harm. The tortfeasors were prosecuted, convicted, and received substantial prison sentences. The Insureds received “no-fault” benefits exceeding $1,000,000 from their Insurer. The issue before the Court was whether, in addition to no-fault statutory benefits, the tortfeasors’ use of a vehicle to transport both themselves and the boulders to the scene of the crime was sufficient to require the Insurer to pay out under the inadequately insured motorist coverage.
The Supreme Court of Canada determined that the appeal turned on: (1) whether the Insureds’ claim was in respect of a tort committed by the tortfeasors in using their motor vehicle as a motor vehicle and not for some other purpose and (2) whether there was an unbroken chain of causation linking the Insureds’ injuries to the use and operation of the tortfeasors’ motor vehicle.
The Courts below held the Insurer liable on the basis of their interpretation of Amos v. Insurance Corp. of British Columbia,  3 S.C.R. 405. The Supreme Court of Canada found the reasons of Amos somewhat helpful but concluded that the decision is not a template to resolve indemnity coverage because the type of insurance and the coverage requirements in Amos did not require the presence of an at-fault motorist.
In Amos, the Insurer contested no-fault liability to its own Insured for statutory benefits payable “in respect of death or injury caused by an accident that arises out of the ownership, use or operation of a vehicle”. The Insured had been attacked by a gang of strangers while he was motoring along an urban street in California. He was shot and seriously injured as he fled in his van away from the assailants, who were on foot.
In this appeal, the Court was not concerned with no-fault statutory benefits payable to an Insured. Moreover, in Amos, the focus was on the use of the Insured’s vehicle; the focus here was on the use of the tortfeasors’ vehicle. The Insurer was liable in Amos because entry into the Insured’s vehicle was the objective of the attackers and the Insured driving in his van was engaged in an “ordinary and well known” activity to which his vehicle could be put.
The Supreme Court of Canada affirmed that “the ordinary and well known activities to which automobiles are put” limits coverage to motor vehicles being used as motor vehicles. Thus, for example, someone who uses his car as a diving platform cannot expect to recover for his injuries under his motor vehicle insurance policy. In this case, the Court found that transporting rocks across the countryside was not the effective cause of the Insureds’ injuries.
The Supreme Court of Canada found that the Courts below erred in transferring, without modification, the discussion of causation in Amos into the different context of determining whether the liability established here on the part of the tortfeasors arose directly or indirectly out of the use of their vehicle. 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. While the use of the tortfeasors’ vehicle “in some manner” contributed to their ability to commit the tort that caused the Insureds’ injuries, such contribution does not mean that the tort was committed in their capacity as at-fault motorists.
In Chan v. Insurance Corp. of British Columbia,  4 W.W.R. 734 (B.C.C.A.), a very similar case to Vytlingam, the Insured was injured while riding as a passenger in her boyfriend’s car when she was struck by a brick thrown from an oncoming vehicle that left the scene and was never identified. The British Columbia Court of Appeal considered whether the brick throwing could be “isolated” from the act of driving the tortfeasor’s car along a highway and accepted the trial judge’s view that it was not possible to do so.
Here, the Supreme Court of Canada suggested that if the analysis had focused on the elements of the tort that gave rise to the tortfeasor’s liability, the fact that the brick was thrown from a car rather than a horse does not qualify it as a motoring activity. The brick throwing was an intervening act. Here, the rock throwing was an intervening act. Thus, neither the tortfeasor in Chan nor the tortfeasors in the present appeal were at fault as motorists.
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