Open Access Invitation: We Are In This Together
For research help reach out to us on Live Chat and receive your Outcome Analysis Report (O.A.R.).
Volume. 4 Issue. 22 – June 3, 2020
Automatic 14 Day Coverage for Newly Acquired
Insurance – It’s Automatic – In 18-012155 v Jevco Insurance, the Applicant was injured while driving a motorcycle he had purchased 11 days prior. While he did in fact have an auto insurance policy on another vehicle with the Respondent, the evidence was clear that he had never secured insurance for the motorcycle and “it was his subjective understanding that he did not have insurance.” At issue was whether the motorcycle was captured by the newly acquired automobile provisions of his Jevco insurance policy that provides for the newly acquired vehicle to be insured, “as long as you inform us within 14 days from the time of delivery…”.
The Respondent argued that the Applicant failed to provide the requisite notice and that this disqualified him from coverage, while the Applicant argued that “the 14-day term is an automatic extension that expires on the 15th day if no notice is given.” The Applicant relied upon Hunter Estate v. Thompson, endorsing a lower court decision that the 14-day extension is automatic. The cited case confirmed, “[T]he insurer would not have included an ‘additional automobile’ under the definition provided in s. 2.2.1 if it did not intend that such automobile be ‘automatically covered’ during those 14 days.”
Agreeing with the Applicant, the Tribunal indicated that the Court was saying “in underwriting the original policy, the insurance company was aware of the 14-day newly acquired automobile provisions and factored that risk into their premium calculation.” Concluding, “[the Respondent] must be understood to have known the risk it was covering and that a newly acquired vehicle might be a motorcycle, notwithstanding that it does not cover motorcycles. It must therefore be taken to have factored the risk of covering a motorcycle for a 14-day period into its premium calculations.”
Full Time Employee Still Dependant on Mother
Risky Assertion – In 19-003485 v Co-operators, the Tribunal considered whether the Applicant was a dependant of his mother, and thereby entitled to benefits under the policy as a result of the death of his brother in an MVA, that caused him a psychological injury. At the time of the accident, the Applicant was employed full time as a construction labourer, living in an apartment with his younger brother and his brother’s girlfriend. In determining “dependency”, it was the Respondent’s contention that the appropriate period to be considered was the two months prior to the accident, when the Applicant was working full time. During this period, they argued that he “was earning enough to pay more than 50%, indeed, more than 100% of his living expenses.”
The Tribunal however noted that during this brief period, the Applicant was using his wages to pay off a previously incurred debt, and that he “intended to start paying for living expenses once that was done.” The Respondent’s approach, “assumes that we can state with confidence that [the Applicant] had ‘found his way’ and that he would continue working through the foreseeable future.” Given the Applicant’s “modus operandi” of historically being unemployed for a period of time, and any employment being of relatively short duration it was found “risky to assert that [the Applicant] was settled into a job and a new, independent way of living.” As a result, the Tribunal found that an examination of the year prior to the accident would yield a more reliable assessment.
The Tribunal found “no evidence that he was ready or able to stick to a job and turn it into a living.” It was found that “the evidence is clear that at the time of the accident, he was not earning enough to pay off his debts and pay his living expenses.” There was “no indication that [the Applicant] wanted or saw any need to achieve independence from his mother. At the time of the accident he was not living at home, but nothing else had changed.” The Tribunal found therefore that the Applicant was entitled to claim as a dependant of his mother.
Degrees of LATitude
In two very different sets of circumstances, the Tribunal considered whether the Applicant, injured in the process of accessing a vehicle and falling, was involved in an “accident”.
Ice Not Intervening – In 19-004361 v Aviva, the Applicant was injured falling on ice in her parents’ driveway as she walked down the driveway to get into a ride sharing vehicle (Lyft). The vehicle was unable to pull the vehicle close to the house, requiring the Applicant to navigate further down the driveway to access the car. The Tribunal “agree(d) with the applicant that the use and operation of the car began when the Lyft driver accepted her ride request and ended when the ride was cancelled by the driver…The applicant’s only purpose in going down the driveway and touching the car to steady herself was to get into the car.”
The Respondent argued that “the facts of this case fall squarely within the line of cases that clearly establish that the ice or snow is an intervening act that breaks the chain of causation”, specifically referencing 18-000468 v Certas. However, the Tribunal found the present case distinguishable as “the Lyft driver could not pull up the entrance, requiring the applicant to walk down the icy snow-covered driveway to make her way to the car.” The Tribunal found in fact there to have been “two direct causes of the accident, the icy snow-covered condition of the driveway and the fact that the Lyft driver could not pull the car up to the entrance of the house.”
Further, it was found “a dominant feature of the accident to be the distance the applicant was required to travel in order to get into the car.” In the case at hand, “the trip started when the Lyft driver accepted the applicant’s request for a ride. The applicant’s slip and fall occurred while the driver of the Lyft car was waiting to continue the trip.” The fact that the Applicant had sued her father for negligence in a related civil matter (occupier’s liability) was afforded no weight.
A Tale of Two Incidents – In 18-011392 v MVACF, the Tribunal noted that the parties’ respective versions of facts surrounding the incident in question were “drastically different”. Relying on the driver’s testimony, the Applicant (in this case the insurer) submitted that “the respondent was simply walking to a parked car and the vehicle was not close in proximity when she fell nor involved in any way. The applicant contends that the respondent has made a willful misrepresentation in her claim for accident benefits for the sole purpose of monetary gain.” Accordingly, the Applicant sought repayment of benefits paid. The Respondent in contrast contended that she fell while in the process of getting into the car, a “regular activity to which automobiles are put.”
The Tribunal, while noting there to be “many problems and inconsistencies with the respondent’s testimony and evidence…(and) as time progressed the respondent has embellished certain facts regarding the incident”, accepted the Respondent’s version of the incident. This was based largely upon the contemporaneous records from two hospital attendances, wherein she reported having “lost her balance when getting into the car” and “ fell after the car shifted gears”, noting that it was the driver of the vehicle itself who had assisted with translation at the hospital.
While the driver had provided an EUO in December 2017 providing a very different version of events, this was noted to have been a year and a half after the accident. With no effort to secure an EUO from the Respondent, the Applicant was found to have been “very selective in which witnesses it sought EUOs from.”
inHEALTH is a boutique injury claim adjusting firm specializing in accident benefits and bodily injury claims.
Purchase a subscription or sign up for a 30-day Free Trial for access to inHEALTH’s LAT Compendium Service – an interactive online research database tailored to decisions released by the Licence Appeal Tribunal (LAT) & Divisional Court.