Lumbermens Mutual: When is a Car Accident not a Car Accident?

Now that spring has arrived and the academic year has grinded to a halt, it might be a good time to reflect back on some recent Supreme Court of Canada (“SCC”) cases that remain as of yet undecided. One intriguing case is Lumbermens Mutual Casualty Company v. Harold George Herbison, et. al., 2005 CanLII 19665 (ON CA)  [Lumbermens Mutual], which was heard in December of 2006. When released, the SCC’s decision in Lumbermens Mutual is bound to draw considerable attention from more than a few critics.

The case involves a party of Ontario hunters and an accidental shooting that may ultimately serve to redefine our understanding of what constitutes a motor vehicle accident. Harold Herbison was shot by another hunter (Fred Wolfe) who had mistaken Herbison for a deer during a pre-dawn hunting expedition. Wolfe had been driving to his hunting stand when he spotted movement in the distance. While leaving the engine and headlights of his pick-up truck running, Wolfe stepped out, aimed and fired his rifle. Herbison was struck in the leg and injured quite seriously.

At the time, Wolfe was insured under a standard automobile liability policy issued by Lumbermens Mutual Casualty Co. Pursuant to s. 239(1) of the Ontario Insurance Act, RSO 1990, c I.8, the policy offered coverage for loss or damage “arising from the ownership or directly or indirectly from the use or operation” of his truck. At trial, Herbison sued not only Wolfe, but Lumbermens, arguing that the vehicle’s policy conditions had been engaged. Herbison’s position was simple: Wolfe had been “using” both the truck and its headlights to hunt.

While Wolfe was found liable in tort, the trial judge dismissed the claim against Lumbermens. Reviewing the leading authority on third party indemnity, Amos v. Insurance Corp. of British Columbia, [1995] 3 SCR 405 [Amos], the trial court found that hunting with headlights—which was an illegal activity—did not constitute an ordinary use of a motor vehicle. The causal relationship between Wolf’s use of the truck and his negligent shooting of Herbison was, likewise, deemed too remote to meet the Amos test.

In 2004, the case was taken before the Ontario Court of Appeal, where the trial judge’s decision was unexpectedly overturned. In a 2-1 decision, the appeal court found that the shooting did, in fact, constitute a motor vehicle accident, since Wolfe would have not been in the position to shoot at Herbison if not for the use of the truck. Using this strikingly broad interpretation of what constitutes the use of an automobile, the appeal court ordered Lumbermens to indemnify Mr. Herbison and his family for well over $800,000.

As we wait upon the SCC to render its decision, it bears noting that whatever the conclusion of Lumbermens Mutual, it will likely have powerful implications for both insurers and motor vehicle owners across the country. Insurers are no doubt concerned that the traditional collision-based definition of motor vehicle accident is in the process of being radically redefined by our courts. Car owners are likewise concerned that such a redefinition might infuse considerable unpredictability in the insurance market, leading to increased premiums. While plaintiffs, such as Mr. Herbison, are understandably drawn to the deep pockets of insurers, the SCC will no doubt need to wrestle with these and other serious policy considerations if we are to avoid a slippery slope of litigation involving a newly defined understanding of what constitutes a ‘motor vehicle accident’.