Law Times

PAGE 10 FOCUS may 4, 2009 • Law Times Appeal court denies coverage to shooting victim S BY JULIUS MELNITZER For Law Times ometimes, make good law. To the parties, however, it doesn't matter: from their hard cases make bad law. Sometimes, however, they it is said, perspective, whether a case is good law or bad law usually depends on whether they win or lose. And for the losers, the hard cases remain hard cases — sometimes tragic cases — whether the judgments produce good law or bad law. So it is with the recent deci- sion of the Ontario Court of Appeal in Russo v. John Doe, which denied an insurance coverage claim by Louise Russo, paralyzed from the waist down in a drive-by shooting some fi ve years ago. Russo sued her insurance company, Th e Personal, under a standard policy provision cover- ing bodily injuries caused by an GILBERTSON DAVIS EMERSON LLP BARRISTERS AND SOLICITORS practice restricted to CIVIL LITIGATION, INSURANCE LAW Angela Emerson John L. Davis John L. Davis Professional Corporation R. Lee Akazaki Jody W. Iczkovitz Jonathan J. Weisman Counsel: James E. Adamson 20 Queen Street West, Suite 2020 Toronto, Ontario M5H 3R3 Tel: (416) 979-2020 Fax: (416) 979-1285 email: office@gilbertsondavis.com CD-ROM includes full text of Ontario Annual Practice Ontario Annual Practice 2009-2010 Edition The Late Honourable James J. Carthy, W.A. Derry Millar and Jeff G. Cowan Written by top experts in civil litigation and public law, this highly regarded procedural guide is the only resource you need to gain a solid understanding of Ontario's civil and administrative procedural law. This handy resource contains all of the relevant legislation and rules of procedure you need to prepare for court. It consists of: • The Main volume — includes, in a single volume, the Rules of Civil Procedure, and the relevant, most pertinent Acts, including the Courts of Justice Act, Evidence Act, Limitations Act, 2002, and the Legislation Act, 2006, with annotations of the most relevant and up-to-date case law. • The Forms and Table of Cases volume — contains forms that relate to the Statutory Powers Procedures Act, Rules of Civil Procedure, Family Law Rules and Rules of the Small Claims Court, as well as the Table of Cases. • The CD-ROM — contains the full text of the 2009-2010 edition as well as fillable Word™ forms, the Table of Cases with links to the full-text judgments, the Table of Forms and the Index to Forms — all easily searchable. • — FREE monthly electronic supplements containing the most recent reported and unreported appeal cases with links to the full-text judgments and legislative changes as they become available. 2010 Amendments included Includes amendments to the Rules of Civil Procedure, O. Reg. 438/08 (effective January 1, 2010) • Includes 2010 Amendments to the Rules of Civil Procedure (effective January 1, 2010) driven by two 2007 decisions from the Supreme Court of Can- ada, Citadel General Assurance Co. v. Vytlingam and Lumbermens Mutual Casualty Co. v. Herbison. In these rulings, the high court determined the limits of insur- ance coverage for claims involv- ing uninsured, unidentifi ed, and inadequately insured persons. "Russo is the fi rst case to de- fi nitively apply the Supreme uninsured motorist, after she was struck by a bullet fi red by pas- sengers in a van driven by Mark Peretz, who was inadequately insured. Th e bullet was intended for someone else. OPCF 44R, the applicable endorsement, re- quires an insurer to indemnify claimants for the amounts they are "legally entitled to recover from an inadequately insured motorist" for injuries arising "di- rectly or indirectly from the use or operation of a motor vehicle." But Justice Russell Juriansz, writing on behalf of a unanimous bench composed also of justices Karen Weiler and Jean MacFar- land, ruled Russo's injuries did not so arise. "Here, Ms. Russo's injuries did not arise from Peretz's driving," he wrote. "Instead, her tragic injuries resulted from the shooting by [the passengers]." "As the [insurer] submits, the shooting was a distinct and inter- vening act completely indepen- dent from the use or operation of a van. Although the incident can indeed by characterized as a drive-by shooting, this character- ization simply means that the ve- hicle 'create[d] an opportunity in time and space for damage to be infl icted.' Th is is not suffi cient for the extension of coverage under the OPCF 44R Endorsement." Th e court's judgment was Court rulings to a particular fact situation," says Todd Mc- Carthy, a partner at the Whitby offi ce of Flaherty Dow Elliott & McCarthy. Vytlingam involved an injury that occurred when two drunken men stepped out of their vehicle and dropping a boulder on his car from a highway overpass. Lum- bermens arose from a man step- ping out of his pickup truck and mistakenly shooting a member of his hunting party. In both cases, the SCC denied coverage. Th e court concluded that dropping the boulder and fi ring the gun were independent actions that "broke the chain of causation," meaning that the in- juries did not result from the use of the vehicles involved. "Th e essence of these cases is that while there is scarcely an activity in modern society that doesn't involve the use of a car in one way or another, that doesn't necessarily mean that injuries are caused by the use or operation of a motor vehicle in every case in which a motor vehicle is part of the circumstances surrounding the injury," McCarthy says. But Russo's lawyer, Paul Bates, a founding partner at Toronto's Bates Barristers, and Charles Gluckstein, a partner with Gluck- stein & Associates LLP argued that the Supreme Court decisions did not apply because Peretz was driving when the shot was fi red, whereas the tortfeasors in Vytlingam and Lumbermens had stepped out of their vehicles. Juriansz didn't buy the distinc- tion. "Th ere is a simple yet signifi - cant fl aw in this argument: under the OPCF 44R Endorsement, it is the bodily injury or death for which damages are claimed, not the claimant's legal entitlement to recover those damages, which must arise 'directly or indirectly from the use or operation' of a motor vehicle," he wrote. "Ms. Russo's theory establishes merely that her legal entitlement to recover damages arises from Peretz's use or operation of the van. If this alone satisfi ed the requirement of the OPCF 44R Endorsement, coverage would be unjustifi ably broad. Th ere would have been coverage, for example, in the Vytlingam situation if the driver had simply remained in the car while his passenger got out and dropped the boulder." But Gluckstein continues to have diffi culty with the court's rea- soning. "It's hard to think what 'in- direct' use or operation of a vehicle might mean if it doesn' my client's circumstances," he says. ORDER your copy today Vol. I Hardbound (Main volume) • 1,924 pp. • Vol. II Perfectbound (Forms and Table of Cases) • 834 pp. • CD-ROM Published May each year • Includes both volumes and CD-ROM Standing order $88 • P/C 0645140000 Current edition only $93 • P/C 0645010999 • ISSN 0318-3556 t apply in For a 30-day, no-risk evaluation call: 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. www.lawtimesnews.com LT0504 "I believe that the Supreme Court made it clear in both Vytlingam and Lumbermens that it was the act of stepping out of the vehicle that amounted to a severance and arrested the chain of causation." "Whenever you're dealing with insurance law, contrac- tual language is in issue and there's always some room for argument," says Bates. It was uncertain at press time whether Russo would seek leave to appeal to the top court. "We're talking about it but haven't made a decision," Gluckstein says. LT

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