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Insurer cannot pro rate attendant care based on economic loss: Ontario Court


July 26, 2012   by Canadian Underwriter


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An Ontario Superior Court judge has held that an insurer cannot take a proportional approach to the payment of attendant care benefits based on the extent of the economic losses suffered.

In Henry v. Gore Mutual Insurance Company, the insurer argued that its liability for attendant care benefits was limited to the number of hours that the attendant care provider lost from work. Ontario Superior Court Justice Timothy Ray, however, ordered that Gore Mutual had to pay the full amount of attendant care benefits as set out in the standard auto insurance policy in Ontario.

In Henry, an 18-year-old man catastrophically injured in a motor vehicle accident elected to have his mother provide attendant care. The mother took a leave of absence from her full time employment at a retail store to care for her son.

The attendant care needs were assessed at $9,500 per month, with the maximum payable by Gore Mutual of $6,000 per month to a lifetime maximum of $1 million, as agreed upon by a Form 1 assessment.

Gore calculated that its liability for attendant care payments to the injured victim (applicant) should be limited to the number of hours that the victim’s mother was working as a proportion of the total attendant care hours assessed, or a pro rated version of the $6,000 per month.

Specifically, Gore took the position that if the service provider — the applicant’s mother — could show that she had sustained an economic loss, then the expense payable would be to indemnify her to the extent of her financial loss, according to court documents. However, rather than paying her lost income, Gore calculated her number of hours and paid her a proportion of the attendant care expense.

The applicant held that the Form 1 assessment agreed to by Gore should pay the maximum of $6,000 per month.

The court found in favour of the applicant. In his decision, Ray wrote:

“A plain reading of the section provides that if a family member stays home from work, loses income in order to provide all reasonable and necessary attendant care to the insured — and the insured is obligated to pay, promises to pay or does pay the family member, then the definition in section 19(1) has been met. All reasonable and necessary attendant care expenses must then be paid to the insured as described in the Form 1.” (emphasis in original ruling)