Russo v. John Doe

Russo v. John Doe

While the vehicle's use satisfied the low-threshold purpose test (it was used as a motor vehicle to transport passengers and guns), the causation test failed because the shooting was a distinct intervening act severable from the use/operation of the vehicle; therefore the OPCF 44R Endorsement does not apply and...

Source-derived case information.

Citation
2009 ONCA 305
Parties
Plaintiff/appellant: Maria Luisa (Louise) Russo; Plaintiff/appellant: Severino Russo; Plaintiff/appellant: Steven Russo; Plaintiff/appellant: Jenna Russo, an incompetent person by her Litigation Guardian, Severino Russo; Plaintiff/appellant: Krista Russo, minor by her Litigation Guardian, Severino Russo; Plaintiff/appellant: Lucia Caliendo; Plaintiff/appellant: Saverio Caliendo; Defendant/respondent: John Doe; Defendant/respondent: Jane Doe; Defendant/respondent: The Personal/La Personnelle
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
15 April 2009
Procedural Posture
Civil / Appeal From Summary Judgment (motion Judge)
Outcome
Appeal dismissed; motion judge's summary judgment in favour of respondent affirmed.
Legal Topics
OPCF 44 R Family Protection Coverage Endorsement, Insurance Act Ss.239(1)(a) and 265(1)(a), Uninsured/unidentified/inadequately Insured Motorists, Causation and Intervening Acts, Coverage Interpretation, Summary Judgment
Source Language
english
Insurance Law Tort Law Civil Procedure Automobile Law OPCF 44 R Family Protection Coverage Endorsement Insurance Act Ss.239(1)(a) and 265(1)(a) Uninsured/unidentified/inadequately Insured Motorists Causation and Intervening Acts +2 more

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Summary, issues, holding and outcome

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Parties

Maria Luisa (Louise) Russo

Plaintiff/appellant

Severino Russo

Plaintiff/appellant

Steven Russo

Plaintiff/appellant

Jenna Russo, an incompetent person by her Litigation Guardian, Severino Russo

Plaintiff/appellant

Krista Russo, minor by her Litigation Guardian, Severino Russo

Plaintiff/appellant

Lucia Caliendo

Plaintiff/appellant

Saverio Caliendo

Plaintiff/appellant

John Doe

Defendant/respondent

Jane Doe

Defendant/respondent

The Personal/La Personnelle

Defendant/respondent

Procedural Posture

Civil / Appeal From Summary Judgment (motion Judge)

Legal Issues

  1. 1 Whether bodily injury from a drive-by shooting arises directly or indirectly from the use or operation of an automobile within OPCF 44R
  2. 2 Whether the purpose and causation tests from Vytlingam/Lumbermens are met
  3. 3 Whether the shooting constituted an intervening act breaking the chain of causation

Ratio Decidendi

While the vehicle's use satisfied the low-threshold purpose test (it was used as a motor vehicle to transport passengers and guns), the causation test failed because the shooting was a distinct intervening act severable from the use/operation of the vehicle; therefore the OPCF 44R Endorsement does not apply and insurer need not indemnify.

Court Disposition

Appeal dismissed; motion judge's summary judgment in favour of respondent affirmed.

Orders

  • Appeal dismissed and motion judge's judgment affirmed.
  • If parties cannot agree on costs, brief written submissions to be filed within 10 days.