Russo loses in bid to sue car-insurance company

TORONTO - A Toronto mother of three left paralyzed after a high-profile drive-by shooting lost her bid on Wednesday to sue her car-insurance company for benefits.

In a ruling on Louise Russo's claim under part of her auto policy, the province's top court found her bodily injury could not be directly linked to an inadequately insured motorist.

"Automobile insurance does not cover injuries caused by robbers inside a bank even though the driver of the getaway car may be legally liable... for the damages suffered," the court said in its ruling.

In April 2004, Russo, then 45, parked outside a California Sandwiches restaurant, left her daughter in the car and ducked inside to grab a snack.

Outside, gunfire erupted in what was later determined to be a deliberate attempt on the life of a patron seated in the restaurant.

A bullet fragment hit Russo in the spine, leaving her paraplegic.

Evidence later emerged that Mark Peretz drove the van towards the front of the restaurant and his two passengers, Antonio Borrelli and Paris Christoforou, opened fire from the parking lot using a Colt semi-automatic rifle and a handgun.

Russo made a claim against her auto-insurance company under the OPCF endorsement, or family protection coverage, which covers injury caused by an under-insured motorist.

The insurance company, the Personal, argued Russo's injuries did not result "directly or indirectly from the ownership, use or operation" of an automobile.

A lower court judge agreed.

The judge found that an "ordinary and expected" use of an automobile is to carry people rather than to transport guns and assailants to a restaurant for a shooting and then to help them escape.

"The shooting was separate and independent from the use and operation of the vehicle," the lower court judge found.

"(The) fact that the assailants shot the gun from a motor vehicle does not make that act a `motoring activity' that can attract indemnification."

The Appeal Court, however, disagreed with that finding, saying use of a motor vehicle for a criminal purpose does not necessarily exclude coverage.

"The motor vehicle was used to transport passengers and apparatus from one place to another," the Appeal Court found.

However, the higher court did dismiss Russo's argument that her legal entitlement to recover damages from the driver was based on his acts as a motorist.

Her injuries, the Appeal Court found, resulted from the shooting, not the driving.

"The shooting (of Russo) was a distinct and intervening act completely independent from the use or operation of the van."