Editor’s Note: This article has been corrected so that all incorrect references to Unica have been replaced with correct references to Optium. Canadian Underwriter apologizes for the error.
If an insurer wishes to deny auto coverage to an injured driver on the basis of an alleged suicide attempt, the insurer’s claims investigation will need to go beyond the police or medical reports alleging suicide, the Ontario Licence Appeals Tribunal (LAT) has ruled.
Most importantly, the insurer will need the authors of the documents — in this case, the police or medical professionals — to testify to corroborate the basis of their allegations.
In R.S. v. Optimum Insurance Company, a man identified as ‘R.S’ in tribunal documents applied for accident benefits after he was injured in his 2000 Volkswagen Jetta on May 1, 2016. He was driving on a secluded, forested two-lane road on or near the grounds of a local college in a small city in northern Ontario, where he swerved off the road and struck a rock face.
“[R.S.] submits that despite his long history of mental health issues and addiction, and even considering that he has said before that he would end his life, he has never acted on these suicidal thoughts and did not act on them on May 1, 2016,” according to a summary of his position by the LAT.
R.S. testified his actions before and after the crash were inconsistent with those of a suicide attempt.
Among other things, he testified that, before the crash, he’d asked his son to join him on a drive to a meditation spot near the crash scene. The son declined. Secondly, when he crashed on his way to a documented AA meeting, he immediately sought medical attention. Also, he was driving the speed limit at the time, or at a speed so low that his car’s air bags did not deploy.
However, Optimum denied benefits, alleging R.S. was attempting to use his vehicle to commit suicide. The legal definition of an accident is when injuries happen during the ‘ordinary course’ of operating a vehicle; deliberately crashing the car in a suicide attempt is not a normal risk of using or operating a car.
Optimum relied on police records of the scene investigation, as well as a report from one of the hospital’s medical professionals who saw R.S. shortly after the crash.
“The conclusion that [R.S.] was attempting suicide with his vehicle appears to have started with the police officers at the scene,” LAT vice chair Avril A. Farlan wrote in a ruling issued Thursday.
“While the police constable’s handwritten notes dated May 1, 2016, indicate the applicant said, ‘he had been feeling down lately — issues with his wife,’ this appears to be in response to a question from the officer about ‘…stress in his life,’” Farlan wrote. “The motor vehicle accident report goes further and records that the applicant ‘…failed to negotiate slight bend in the road (purposely/suicide attempt)…’ and indicates ‘code 33. Suicide attempt.’”
The basis for this conclusion is not clear from the police officers’ notes, nor the motor vehicle accident report, Farlan wrote. “From their notes, the police officers do not appear to have asked the applicant if he had attempted suicide with his vehicle during the incident and the applicant does not appear to have said this to them. Neither police officer testified at the hearing.”
The emergency room doctor also suggested the crash could have been the result of a suicide attempt. But Farlan downplayed the emergency doctor’s credentials to make such a claim.
Instead, the LAT vice chair preferred the assessment of the hospital psychiatrist, who released R.S. from hospital the day after the crash.
“I find this medical assessment [by the hospital psychiatrist] is more likely than not inconsistent with an attempt at suicide by vehicle,” Farlan wrote. “I give this evidence greater weight than the notes and report of the police officers, the ambulance attendants and the emergency room physician because, it was performed by a medical specialist within a relatively short time post-incident.”
And, as Farlan repeatedly noted, none of the police or medical professionals who alleged suicide testified to explain the basis of their conclusions.
“[Optimum] relies on the police, ambulance and hospital records from May 1, 2016 and the pre- and post-incident records, which the [insurer] submits establish that the applicant intentionally drove his vehicle off the road on May 1, 2016 in a suicide attempt. None of the makers of these notes testified at this hearing. Without any other explanation, I am prepared to accept [R.S.’s] testimony that he did not say he had attempted to commit suicide with his vehicle that day, and if he did, it was in circumstances where he had injured his head.”