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Insurer successfully proves arson as the cause of a car fire


May 14, 2010   by Canadian Underwriter


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The Ontario Superior Court of Justice has dismissed a claim for damages resulting from a vehicular fire, determining instead that arson caused the fire.
In Salihi v TD General Insurance Company, Najib Ullah Salihi attempted to sue his auto insurer for $40,000 for breach of contract.
A fire occurred in the interior of Salihi’s Toyota Camry on Oct. 29, 2007. The damage arising from the fire exceeded the market value of the car. Salihi made a claim under his auto policy and TD General Insurance denied it.
TD General maintained that the fire was deliberately set.
At trial, TD General called on an independent expert specializing in forensic engineering and vehicle fire investigation.
The expert found the fire had been set with a combustible substance in the front passenger foot well. He also found the fire had died out from a lack of oxygen because the windows were shut tight.
Evidence at trial indicated that two nights before the accident, Salihi got into a minor vehicle collision that he did not report to the police or his insurer.
Also, a TD employee testified that this accident would have been the third in a six-month period. TD had indemnified Salihi for the previous two.
In October 2007, TD sent Salihi a notice of cancellation for non-payment of premiums, effective Nov. 25, 2007.
Evidence at trial also indicated that the car was locked at the time of the fire with no indication of a forced entry and that Salihi was the only person with keys to the vehicle at the time.
“I found the plaintiff not to be a credible witness,” wrote Ontario Superior Court Justice Wailan Low, who noted that when Salihi called 911 to report the fire, he asked specifically for a police officer, but not the fire department.
Low found Salihi had a financial motive to set the fire —including a heavy debt load and monthly car payments of $610, not including insurance — and that he was the only one with access to the car.
“In my view, the only reasonable inference to be drawn, given the origin and cause of the fire, the fact that the plaintiff had the sole opportunity to set the fire and the presence of financial motive to do so, is that the plaintiff set the fire.”
As a result, TD General has met the onus to establish its defence of arson.
Justice Low dismissed the action and awarded TD General Insurance $25,000 in costs.


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