Homeowner’s Policy Must Indemnify Against Criminally Negligent Shooting

The latest chapter in the Eichmanis litigation is a ruling on whether either of two homeowner’s insurance policies provided liability coverage to a 15 year old boy who had pleaded guilty to criminal negligence causing bodily harm as a result of having shot a 13 year old friend. The shooting took place while the boys were playing in the empty house of the 15 year old’s father. The friend had suffered serious injuries and had sued the boy and members of his family. That litigation went all the way to the Court of Appeal. The 15 year old was found to be 30% responsible for damages of $799,875. At the time of this motion, the judgment remained wholly unsatisfied.

In this action, Eichmanis v. Wawanesa Mutual Insurance Company, the injured plaintiff and his family had sued the insurers of the boy’s mother and his aunt and uncle under s. 132 of the Insurance Act, seeking payment of the award against the 15 year old boy. They brought a motion, asking the court to interpret the policies.

Madam Justice Helen Pierce had to determine whether there was coverage under either of two homeowner’s policies and if so, whether exclusions in the policies applied. One policyholder was the mother of the 15 year old shooter (referred to in the reasons as “R.P.”). That policy was with CGU Insurance (now “Aviva”). The other policy had been issued by Wawanesa Mutual Insurance to R.P.’s aunt and uncle.

R.P. came from a troubled family. At the time of the 1998 shooting, his mother had custody of him but because he was estranged from her, he had been living with his father. However, the father was compelled to submit to treatment for alcohol addiction at a residential institution. During that time, R.P. was living with his aunt and uncle.

The first issue for the court was whether R.P. was “in or of the household” of either insured. Justice Pierce concluded that he was living in the household of his aunt and uncle, not his mother. Speaking of the former, Her Honour said “When he was with his aunt and uncle, he was not a part of any other functioning household. His aunt and uncle took him in because he was their nephew. He was connected to them by familial bonds. They felt an affinity with him by virtue of that bond. He was not merely a boarder.”

In finding that R.P. was not “in or of” his mother’s household, Pierce J. noted that “[t]he trial court and the Court of Appeal found that the mother delegated R.P.’s care to others. The evidence was that the boy was estranged from his mother at the time he elected to stay with his father, and that they had little contact. He cut ties with her 6 months prior to the shooting. He kept secrets from her, knowing she would intervene if she knew he was playing with guns.”

Having determined that R.P. was an insured under the Wawanesa policy, Justice Pierce turned to the second issue: whether s. 118 of the Insurance Act applied to exclude coverage. That section reads as follows:

Unless the contract otherwise provides, a contravention of any criminal or other law in force in Ontario or elsewhere does not, by that fact alone, render unenforceable a claim for indemnity under a contract of insurance except where the contravention is committed by the insured or by another person with the consent of the insured, with intent to bring about loss or damage, but in the case of a contract of life insurance this section applies only to disability insurance undertaken as part of the contract.

The insurers contended that R.P. having pleaded guilty to and been convicted of criminal injury causing death, the shooting was a “contravention of criminal law with intent to bring about loss or damage and was therefore excluded”. Justice Pierce rejected this argument. She said:

R.P.’s conviction for criminal negligence is not a criminal act that is caught by the exclusion clause. Criminal negligence is a subset of negligence. It is included in the Criminal Code because Parliament has enlarged criminal responsibility beyond intentional conduct. The mens rea for criminal negligence is recklessness as defined in section 219 of the Criminal Code. This is qualitatively different that the mens rea for intention: Devlin v. Co-operative Fire and Casualty Co., [1978] A.J. No. 682 (Alta S.C. A.D.).  R.P.’s criminal negligence is the very type of conduct that is contemplated by s. 118 of the Insurance Act.

In the result, Justice Pierce found that R.P. was an insured under the Wawanesa policy but not the CGU policy. Coverage was not excluded under either policy.

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