Herbison v. Lumbermens Mutual Casualty Company

Herbison v. Lumbermens Mutual Casualty Company

Majority held that, applying the Amos two-part test broadly and having found a sufficient nexus between Wolfe’s use/operation of the truck (transport to hunting site and illumination by headlights) and the shooting, the appellant’s damages arose indirectly from the vehicle within s.239(1) and thus insurer must indemnify under s.258(1).

Citation
C40602
Parties
Plaintiffs/appellants: Harold George Herbison et al. (the Herbison Group); Defendant/respondent: Lumbermens Mutual Casualty Company
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
7 June 2005
Procedural Posture
Civil Insurance and Tort / Court of Appeal Decision on Appeal and Cross Appeal From Trial Judgment and Prior Motions (coverage, Summary Judgment, Recovery Action)
Outcome
Appeal allowed (majority); recovery action allowed against insurer; summary judgment appeal dismissed; costs awarded to appellant on partial indemnity basis
Legal Topics
Insurance Coverage, Statutory Interpretation, Causation, Summary Judgment, Res Judicata/issue Estoppel, Costs
Source Language
English
Insurance Law Tort Law Civil Procedure Motor Vehicle Law Insurance Coverage Statutory Interpretation Causation Summary Judgment +2 more

Case Brief

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Parties

Harold George Herbison et al. (the Herbison Group)

Plaintiffs/appellants

Lumbermens Mutual Casualty Company

Defendant/respondent

Procedural Posture

Civil Insurance and Tort / Court of Appeal Decision on Appeal and Cross Appeal From Trial Judgment and Prior Motions (coverage, Summary Judgment, Recovery Action)

Legal Issues

  1. 1 Whether the insured policy provided indemnity under s.239(1) of the Insurance Act for losses arising from the hunting accident
  2. 2 Whether the trial judge erred in refusing costs to the insurer in the recovery action
  3. 3 Whether the motions judge erred in dismissing insurer’s summary judgment motion invoking res judicata/issue estoppel

Ratio Decidendi

Majority held that, applying the Amos two-part test broadly and having found a sufficient nexus between Wolfe’s use/operation of the truck (transport to hunting site and illumination by headlights) and the shooting, the appellant’s damages arose indirectly from the vehicle within s.239(1) and thus insurer must indemnify under s.258(1).

Court Disposition

Appeal allowed (majority); recovery action allowed against insurer; summary judgment appeal dismissed; costs awarded to appellant on partial indemnity basis

Orders

  • Appeal allowed; judgment of trial judge dismissing recovery action set aside
  • Respondent insurer Lumbermens Mutual Casualty Company ordered to indemnify appellant Harold Herbison in the amount of $832,272.85 plus post-judgment interest from February 13, 2002