The Financial Services Commission of Ontario (FSCO) has dismissed The Economical's appeal of a decision that required the insurer to pay accident benefits to a man catastrophically injured after attempting a headstand on a stripper pole inside a party bus.
FSCO director delegate David Evans found the original decision did overreach in one instance, but this by itself did not warrant overturning the decision.
Daniel Whipple attempted a headstand against a stripper pole in a moving limo bus on June 26, 2009, and suffered catastrophic injuries. His insurer, Economical Mutual Insurance Company, appealed the arbitrator's decision that the incident was an "accident" under the SABS-1996.
In his analysis, Evans noted the initial arbitrator considered whether Whipple's attempted headstand constituted one of the "ordinary and well-known activities to which automobiles are put."
"[A]s the arbitrator did in this case, you have to look at the particular vehicle to see what type of ordinary and well-known activities it could be put to," Evans wrote. "And this vehicle was marketed as a party vehicle, where the users faced few restrictions on their use of the limo bus.
"Advertising alone makes for a well-known use, and that use could be pretty much any type of ‘party activity.'
"No rules or policies were communicated to Mr. Whipple when he rented the bus, nor was there any evidence of any express or implied waiver.
"The fact that the vehicle was referred to as a ‘Party Bus' designed to provide ‘service and transportation needs to fit the client requests' supports the arbitrator's determination that Mr. Whipple's activities were not outside of the scope of the vehicle's use and operation."
Evans found the initial decision might have overreached when the arbitrator unnecessarily considered the third part of a three-part court test of "causation" in the 2002 case Chisholm v. Liberty Mutual Group.
In Chisholm, the court said that in some cases it is useful to ask if the use or operation of the vehicle was the dominant feature of the incident. But the arbitrator didn't need to apply this part of the test in Whipple, Evans concluded.
"As I understand the comments in Chisholm, it is not necessary to consider the dominant feature [test] in every case," he wrote. "Furthermore, the arbitrator really applied the dominant feature test in considering the effect of the limo bus's motion on the incident, which then unduly broadened the reach and scope of this decision."
Evans said he understood the arbitrator's wish to address The Economical's argument that Whipple's headstand was so outlandish precisely because it was performed in a moving limo bus. But in doing so, the arbitrator may have clouded the issue by addressing whether or not the limo bus's motion must have played a role in the fall.
"[T]he problem with the arbitrator's finding is that it could apply to any antic in any moving vehicle anywhere at any time," Evans wrote. "This finding means that any failed antic would meet the causation test, because it could be argued there were multiple causes for the antic's failure: the person's own recklessness and an even imperceptible motion of the vehicle."
Still, this was not enough to overturn the initial decision, Evans ruled.