Canada: Analyzing Use Or Operation Of A Vehicle

Case Comment: Hunt v Peel Mutual Insurance

In October of this year, our office released a case comment concerning the decision in Hunt v Peel Mutual Insurance Company. In the case, Mr. Hunt (the appellant) and his daughter, Amealia, were passengers in a vehicle driven by Mr. Hunt's girlfriend, Tammy-Lynn Dingman. Ms. Dingman was driving while impaired at the time. She held an automobile insurance policy with Peel Mutual Insurance Company.

As a result of Ms. Dingman's impaired driving, Amealia sustained injuries. Amealia then sued her father for negligent parenting, alleging that he was negligent by permitting her to be transported in the motor vehicle of an impaired driver.

Mr. Hunt brought a motion for a declaration that Peel Mutual has a duty to defend him against his daughter's lawsuit as he is an "insured person" within the meaning of the Insurance Act. As we read from Van Krkachovski and Egi Troka, Mr. Hunt's motion was denied and his appeal was dismissed. The Court of Appeal agreed that Mr. Hunt was not an "insured person" under section 239 of the Insurance Act because Amealia's allegations against her father for negligent parenting did not pertain to his use or operation of a vehicle.

In this case comment. we will further analyze why the Court of Appeal found that Amealia's allegations did not pertain to Mr. Hunt's use or operation of a vehicle.

Section 239 of the Insurance Act

This section reads that an "insured person" is the person named in the policy as well as every other person who, with the named person's consent, drives or is an occupant of an automobile owned by the insured named in the contract. The second part of the section reads that to be covered, an occupant's liability must be for loss or damage arising from the use or operation of the automobile.

With the above in mind, we must ask why Mr. Hunt was not considered an insured person. To answer this question, we turn to the test used by the Court.

The Coverage Test

The coverage test used for tort actions, rather than accident benefit actions, is from Vytlingam (Litigation Guardian of) v Farmer, [2007] 3 SCR 373. In order for Mr. Hunt's claim to be covered, his acts or omissions thereof must satisfy this coverage test.

The first part of the test is known as the purpose test. Did the injuries/loss result from the ordinary and well-known activities to which automobiles are put? This part of the analysis is relatively straightforward. Amealia's injuries arose from Ms. Dingman's use and operation of the vehicle. Ms. Dingman was using her automobile in the way in which they are meant to be used.

The second part of the test is known as the causation test. Was the use or operation of the vehicle a cause of the injuries? Again, Ms. Dingman's use and operation of the vehicle was a cause of Amealia's injuries. This fact, however, has only tangential bearing on Amealia's claim against her father. The tort Amealia is suing her father for is unrelated to his use and operation of the vehicle. Instead, her claim is based on her father's decision, as her parent, to place her in a vehicle with an impaired driver. Her injuries arose as a result of that decision. Further to this, Amealia's injuries occurred independently of her father's occupancy of the vehicle; she would have suffered the same injuries had he chosen not to enter the vehicle after placing her in it.

Although it appears that the purpose test in Vytlingam has been satisfied, the causation test requires us to further investigate the causal link between Amealia's loss and her father's negligence. Causation arose prior to Ms. Dingman's use and operation of her vehicle; the Superior Court and the Court of Appeal agreed that the causation arose once Mr. Hunt put his child in the vehicle.

The rationale here is similar to the rationale in the case of Herbison v Lumbermens Mutual Casualty Co., 2007 SCC 47, where the Court struggled with the causation part of the test. Here, they also focused on the chain of causation and determined that it was broken when the defendant interrupted his motoring to go hunting. The cause of the injuries/loss was the gunshot that occurred while hunting, not the use or operation of the vehicle.

The connection of the two above cases may not be immediately obvious, but the underlying message is that the Courts, when applying this test, will ensure that the loss being claimed for was caused by the use or operation of the vehicle and that there is no intervening cause that breaks that chain of causation. Ultimately, if Mr. Hunt made a different decision at the outset, Amealia would not have suffered those injuries as a result of Ms. Dingman's impaired use and operation of the vehicle.

Conclusion

Although Amealia's injuries arose from the use of a vehicle, Mr. Hunt's liability for her loss or damage does not. Instead, his liability arose from negligent parenting, not from anything he did or did not do as an occupant connected to the use or operation of the automobile. His liability arose when he decided to put his daughter in the vehicle with an impaired driver.

From this case, we see that automobile insurance cannot be used to shield oneself from lawsuits regarding negligent parenting simply because a negligent decision involved a motor vehicle.

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