KIRK MAKIN From Globe and Mail, October 20, 2007 at 12:43 AM EDT

A Toronto motorist who suffered life-altering injuries when a boulder was dropped on his car by two intoxicated thrill-seekers cannot be compensated under their insurance policies, the Supreme Court of Canada ruled Friday.

The court said that it would twist insurance law and simple logic to find a close link between the car used to transport the boulder and the injuries suffered by Michael Vytlingam – who now requires 24-hour-a-day care.

In a companion case Friday, the court also denied insurance benefits to Harold Herbison, whose hip was blown apart in 1998 by a hunter who had mistaken him for a deer.

The shooter, Fred Wolfe, was leaning against his vehicle and used his headlights to illuminate a flashing object on the other side of a darkened field when he shot Mr. Herbison.

Both cases turned on the question of whether the injuries the victims suffered were sufficiently connected to the use of motor vehicles. In unanimous judgments, the court rejected an overly liberal approach that would “invite indemnification claims for everything from stag party assaults to self-immolations.”

“The Supreme Court got it right,” said Donna Ford, an expert in insurance law. “It was almost to the point in our legal system where if you could see a car when you were injured, you had a claim.”

Alan D’Silva, a lawyer for the Insurance Bureau of Canada, said it is now clear that auto policies “cannot be used as a pool of funding to cover losses unrelated to auto use – including criminal acts simply because an automobile was used to get to the scene.”

Mr. Vytlingam, 18, and his father were on a marathon haul through the United States on March 14, 1999, returning from Florida after spring break, when Todd Farmer and Anthony Raynor dropped the boulder from an overpass in North Carolina.

As sympathetic as one might be to the victim, Mr. Justice Ian Binnie wrote for the court, “insurance policies must be interpreted in a way that gives effect to the reasonable expectations of both insured and insurer.”

He equated the situation to that of an individual who gets drunk and uses her car as a diving platform from which to spring head-first into shallow water, breaking her neck. “She could not reasonably expect coverage from her motor vehicle insurer, even though, in a sense, she ‘used’ her motor vehicle,” Judge Binnie said.

In the Herbison case, the victim and his nephew were walking across a farmer’s field to their designated hunting stand shortly before dawn on Nov. 2, 1999, when Mr. Wolfe fired at them. Mr. Wolfe had left the engine of his 1987 Nissan pickup truck running, his headlights illuminating the field, after he thought he had spotted the flash of a deer’s tail.

“However, in an act independent of the ownership, use or operation of his truck, Wolfe interrupted his motoring to start hunting, thereby breaking the chain of causation,” Judge Binnie said.

At the same time, the court explicitly rejected an Insurance Bureau of Canada submission that coverage can be denied whenever an injury is caused by criminal activity.

“This is not so,” Judge Binnie said. “Innocent drivers, or pedestrians, should not be denied indemnity if struck by (to give a further example) a getaway car ‘transporting’ bank robbers from the crime scene.”

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