Canadian Underwriter

Excluded drivers can still claim accident benefits, court rules

February 5, 2018   by Greg Meckbach, Associate Editor

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Drivers excluded from coverage on their own policies can still claim accident benefits on the policies of other drivers, as long as they weren’t driving the vehicles from which they were excluded coverage, the Court of Appeal for Ontario ruled Friday, after considering two separate situations.

In The Dominion of Canada General Insurance Company v. State Farm Mutual Automobile Insurance Company, the Court of Appeal for Ontario heard two appeals together. Both involved The Dominion, which is now owned by The Travelers Companies Inc.

In one case, Umberto Rupolo was injured in February 2012 while riding as a passenger in his girlfriend’s car. Her car was insured by State Farm, but Rupolo applied for accident benefits with Dominion, the insurer of his parents’ car.

The arbitrator hearing the priority dispute ruled in favour of State Farm, finding that Rupolo was eligible to get accident benefits from The Dominion because he was not actually driving his parents car.  The arbitrator agreed with State Farm that the SABS regulation “was to be given a broad and liberal interpretation, and that any ambiguity was to be resolved in favour of Umberto.” The arbitrator found that “there is sufficient ambiguity to an individual reading the OPCF 28A to think there would still be full accident benefits if not driving the excluded vehicle, and even limited accident benefits if driving the excluded vehicle.”

This ruling was overturned on appeal by Ontario Superior Court of Justice Kelly Wright in a decision released in 2015. The Court of Appeal’s Feb. 2, 2018 ruling restores the arbitrator’s decision against The Dominion.

A second case heard by the Court of Appeal arose when Matthew Bortulus was driving an uninsured motorcycle in 2008. Bortulus applied for accident benefits with  Belair, which insured the other vehicle involved in the collision with his motorcycle. Bortulus was an excluded driver under a policy written by The Dominion for his parents’ vehicle. Bortulus is an “insured driver” under that policy, but there is also an excluded driver endorsement stipulating that Bortulus is excluded for liability and property damage if he were to drive that car; plus, he could only get certain accident benefits. Belair argued that The Dominion should be paying Bortulus’s accident benefits claim.

Ontario has a pay first, dispute later system for auto accident benefits. For example, when a person claims accident benefits with Insurer A, if Insurer A believes the benefits should actually paid by Insurer B, Insurer A must still adjust the claim and then go after Insurer B for reimbursement after the fact. Disputes are resolved through private arbitration, and arbitrators’ decisions in “priority disputes” can be appealed to the Ontario Superior Court of Justice.

In the case involving Bortulus and the motorcycle, the arbitrator noted that he would have ruled in favour of The Dominion, but ultimately found that the arbitrator is bound by Justice Wright’s 2015 decision in favour of State Farm. The Dominion appealed. In a ruling released in 2016, Ontario Superior Court Justice Jasmine Akbarali ruled that the arbitrator should not have been bound by Justice Wright’s decision in the case involving Rupolo. Justice Akbarali reasoned that the standard of review in such cases (involving priority SABS disputes) is reasonableness rather than correctness.

In its ruling released Feb. 2, 2018, the Court of Appeal for Ontario ruled against The Dominion.

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1 Comment » for Excluded drivers can still claim accident benefits, court rules
  1. Frank Cain says:

    In Ontario, Accident Benefits, to whatever degree they may be allowed by law to apply, are absolute (complete, utter, unconditional, not relative or comparative – Oxford). Meaning that, disregarding the circumstances of a policy, or policies, that may have been in force at the time, someone will be paid. It’s the law. So all the preamble of who should pay simply keeps the justice system on its toes, thereby preventing flat-footed decisions.

    It’s also interesting to note that, under a commercially-rated auto policy, you do not have to be in the employ of your former company to be paid. How? If you as a driver were listed on the insurer’s policy but were not removed at the time you left employment, in the absence of any other protection you might otherwise have had, the policy listing you as a former driver will pay. That’s also the law.

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