S.C.C. Grants Leave in Citadel v. Vytlingam

The Supreme Court of Canada this morning granted leave to Citadel Insurance to appeal last year’s decision of the Ontario Court of Appeal in Vytlingam v. Farmer et al. Subscribers will recall that in that case, three North Carolina youths placed boulders in their car, drove to an overpass, got out and dropped one of the boulders on the unlucky Vytlingam, who happened to be driving beneath the overpass. He suffered very serious injuries when the falling boulder crashed through the windshield of his car.

The three youths had insurance coverage of only US$25,000, so Vytlingam turned to his own insurer, Citadel, for coverage under an underinsured motorist endorsement. That policy provided coverage of C$1 million. However, Citadel argued that the policy did not have to respond because the claim had not arisen directly or indirectly from the use or operation of an automobile. The Court of Appeal rejected this submission and ruled that the Citadel policy had to respond. The Court agreed with the motions judge’s view of the role of the automobile in this incident: “the use or operation of the vehicle was not merely incidental or fortuitous. Its use was central to the defendants’ entire plan. It was necessary for their transportation to the scene, essential to carry the boulders, and the means for their escape.”

On the same day last June, the Court of Appeal decided a similar issue in Herbison v. Lumbermens Mutual Casualty Company, again ruling that the accident (one hunter shooting another) had arisen from the use or operation of an automobile. Leave to appeal to the Supreme Court of Canada has also been sought in that case but the Court has not yet ruled on the application. Now that leave has been granted in Vytlingam however, we would expect that leave will also be granted in the Herbison case.

In any case, a decision on the appeal(s) will probably not be given until some time next year.

This entry was posted in Auto, Insurance News. Bookmark the permalink.