“Failure to Supervise” Fails to Trigger Liability Coverage
Kopas v. Western Assurance Co., [2008] O.J. No. 4057, is a tragic case involving a young boy that was run over and killed by a car in a parking lot. The boy’s family sued the negligent driver, and the latter made a cross claim against the boy’s father and grandfather for failing to supervise the boy. The father was unloading his car trunk at the time of the accident, and the grandfather was standing next to the father’s car while keeping an eye on the boy. The parties settled and allocated 70% liability against the driver, and 30% against the father and grandfather. The father and grandfather then sought indemnify from their car insurer for their defence costs and settlement contribution. The insurer denied that its policy responded to the claim. It stated that the father’s car was not involved in the accident, and hence the accident did not involve the “use or ownership” of the father’s vehicle.
In deciding whether or not coverage was available, the motions judge applied the two recent Supreme Court of Canada decisions in Vytlingham v. Farmer (2007), 53 C.C.L.I. (4th) 31 and Herbison v. Lumbermans Mutual Casualty Co. (2007), 53 C.C.L.I. (4th) 31. These decisions deal extensively with the issue of the scope and meaning of the phrase “use and ownership”. For an insurer to be liable, the claim must be sufficiently connected to the use and operation of the motor vehicle for it to be concluded that the claim is based on a tort committed by a motorist. Where the use or ownership of the vehicle is merely incidental to the claim, then there will not be a duty to indemnify.
The court ultimately ruled that coverage was not available. The boy had safely exited out of his father’s car. He then left the vicinity of the car and walked to a fence in order to watch a train pass by. By the time he was returning from the fence, the duties owed to him by his father and grandfather were owed as guardians of children, and not as “motorists”. Kopas is a very useful decision in that it is quite thorough in its review of the caselaw. As well, it further demonstrates that the courts are applying a more strict approach, in light of Vytlingham and Herbison, in determining auto liability coverage. It marks a shift away from the more “results oriented” approach in the past which would likely have resulted in coverage.