An embarrassment of riches. The Court of Appeal has released a second decision this afternoon which deals with almost the identical issue as did Herbison v. Lumbermens. In Vytlingam v. Farmer, the underlying claim arose from a boulder having been dropped from an overpass and injuring a passing motorist. This took place in the United States . The injured motorist (Vytlingam) then claimed under the underinsured endorsement of his insurance policy with the Citadel Insurance Company (as the third party liability coverage was only US$25,000).The key issue was the interpretation to be placed on a phrase in the OPCF 44R endorsement: “arising directly or indirectly from the use or operation of an automobile”. (This language differs only slightly from that which was under consideration in the other decision released today by the Court of Appeal, Herbison v. Lumbermens. In the OPCF 44R phrase, the word “ownership” does not appear. It did in s. 239 of the Insurance Act, with which the Court was concerned in Herbison.)
The Vytlingam case was decided by a completely different panel than was Herbison: Justices MacPherson, Juriansz and MacFarland. Like Herbison, this was a split decision. Justices MacPherson and MacFarland found for the plaintiff. Justice Juriansz dissented and would have ruled in favour of Citadel.
Oddly, except for passing references in footnotes to each case, nothing was said by the judges in Vytlingam and Herbison about their colleagues’ simultaneous decision, on almost the identical issue, in the other case.
The majority in Vytlingam found that the requisite “nexus” was present, so as to engage the auto coverage, even though, at the relevant time, the persons who threw the boulder from the overpass had parked their car and were outside it. The trial judge had relied upon the following facts:
The tortfeasors’ motor vehicle was:
a) central to the escape;
b) required to transport them to the scene; and
c) of most significance, necessary to transport the boulder.
The Court of Appeal concluded that this was an adequate “nexus” so as to satisfy the requirements of the endorsement.