Cyclist’s collision with a parked van an “accident”: FSCO

A woman who swerved on a bicycle to avoid a parked vehicle and injured herself was in a “motor vehicle accident,” according to an arbitrator from the Financial Services Commission of Ontario (FSCO).

In the decision DiMarco and Chubb Insurance Company, arbitrator Deborah Pressman accepted that the incident arose directly from the “use or operation” of an automobile as defined in the Insurance Act and Statutory Accident Benefits Schedule (SABS).

Marilena DiMarco was riding her bicycle in a town that had closed its main street for a festival. She was forced onto a sidewalk, which was partially blocked by a parked van. DiMarco tried to avoid the van, lost her balance and fell, hitting the van with her hand in the process.

Chubb Insurance argued that the act of parking takes the automobile out of the “use or operation” of a motor vehicle for insurance purposes. The insurer also held there were discrepancies or inconsistencies in DiMarco’s testimony.

In her decision, Pressman ruled: “in this case, Ms. DiMarco was compelled to manoeuvre on the sidewalk around a vehicle that was parked in her way.

“This automobile set in motion a chain of events directly resulting in Ms. DiMarco’s fall from the bicycle. There was no intervening act that caused Ms. DiMarco to fall. There were no other impediments around the automobile or near Ms. DiMarco.

“Therefore, there was a direct and proximate cause between the ‘use or operation’ of the automobile and Ms. DiMarco’s injuries.”