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New decision on wording of "directly or indirectly"

By Brian C. Atherton

Atherton Barristers

The Superior Court decision in Herbison v. Lumbermens Mutual Casualty Company deals with the question of whether there is coverage under the motor vehicle liability policy where the insured traveled in the insured automobile to a hunting location, and once out of the vehicle, mistakenly shot another hunter. The case is helpful from the stand point of reviewing a number of other decisions in this area which have discussed the concept of when an injury arises "directly or indirectly" out of the use or operation of a motor vehicle.

Coverage was claimed pursuant to s. 239(1) (a) of the policy. The section reads as follows:

Subject to s. 240, every contract evidenced by an owner’s policy insures the person named therein, and every other person who with the named person’s consent drives, or is an occupant of, an automobile owned by the insured person named in the contract and within the description or definition thereof in the contract, against liability imposed by law upon the insured named in the contract or that other person for loss or damage:

•  arising from the ownership or directly or indirectly from the use or operation of any such automobile; and

•  resulting from bodily injury to or the death of any person and damage to property.

After receiving judgment against the defendant in the sum of $832,272.85, plus pre- and post-judgment interest and costs, the plaintiff applied to have the sum paid by the motor vehicle insurer of the defendant.

The Insurer denied the claim on the grounds that the injury to the plaintiff did not arise "directly or indirectly" from the use or operation of the motor vehicle.

The plaintiffs argued that the defendant required the use of a vehicle to get to the hunting scene, and used the vehicle’s headlights to try to identify what he perceived to be a deer.

Justice Manton disagreed, and held that the injury to the plaintiff was as a result of the negligence of the defendant in firing a shot toward the target that he could not see properly.

This decision seems to reaffirm the principle that the injury to the plaintiff must be as a result of the use or operation of a motor vehicle and not simply as an ancillary feature, (i.e. simply arriving at the scene of an eventual accident).

Hopefully, other courts will follow this example in interpreting s. 239 of the Act.

Please contact me if you have any further questions regarding this case or any other matter.