The first case this month deals with the issue of the appropriate payor for uninsured automobile coverage. The Court held that an employee who is involved in a motor vehicle accident while driving an employer’s vehicle is covered by the employer’s automobile policy with respect to uninsured motorist coverage, despite the employee having a valid policy of insurance for his personal vehicle.
Our second case deals with the payment of Section B benefits and whether particulars of settlement with a third party are relevant to the payment of such no-fault benefits.
￼Oliveira (Litigation Guardian of) v. Mullings (2009), 94 O.R. (3d) 75
The plaintiff was involved in a motor vehicle accident on September 25, 2003 while driving a vehicle provided to him for his regular use by his employer. The vehicle was insured with Dominion of Canada General Insurance Company (“Dominion”). The plaintiff also had a valid policy of insurance with ING Insurance Company of Canada (“ING”) which insured two of his personal vehicles. On May 29, 2007, it was determined that the second vehicle involved in the September 2003 accident, driven by Phillip Mullings, was uninsured at the time of the accident. The two insurers brought a Motion to determine which of them was obliged to pay the plaintiff, under the uninsured automobile coverage, amounts which he was entitled to recover as damages from Mullings.
Dominion relied on the operative note following section 5.3.1. of the O.A.P No. 1 stating that if the plaintiff is an owner of an insured automobile then that policy (in this case the policy with ING) should provide coverage for any damages that would be recoverable from the uninsured automobile operator.
Justice Kelly relied heavily on the Ontario Court of Appeal’s decision in Maddalena v. Crouse (1996), 30 O.R. (3d) 578 (C.A.), in dismissing the claim against ING. Quoting from Maddalena v. Crouse, Justice Kelly stated that “there was no indication that the legislature intended to limit employee coverage to those employees who did not own vehicles covered by other polices. A plain reading of the statute led to the conclusion that the insured automobile could not be the same vehicle as the uninsured vehicles.” Based on the Court of Appeals previous decision, Justice Kelly ordered that Dominion must respond to the uninsured portion of the plaintiff’s claim.
The New Brunswick S.P .F . No. 1 Automobile Policy contains similar provisions for uninsured automobile coverage. The notation in Section D following subsection 1(iii)(c) states “if such a director, officer, employee or partner or his or her spouse is not the owner of an automobile insured under a contract.” Based on the language used, it is likely that the New Brunswick Courts would reach the same conclusion as Justice Kelly.
Humphrey v . Portage La Prairie Mutual Insurance Co. 2009 NSSC 153
The plaintiff was injured in a motor vehicle accident on December 5, 2000. She sued those responsible for damages she suffered and eventually settled that claim in 2004. The plaintiff also brought a claim against her own insurer, Portage La Prairie Mutual Insurance Co., claiming a failure to pay her no-fault benefits. The defendant requested particulars of the settlement with the tortfeasor including any credit given for Section B coverage and the amounts paid to her with respect to loss of income. The defendant argued that the contract of insurance with the plaintiff was one of indemnity, and if the plaintiff had not suffered a loss of income, then Section B loss of income benefits were not recoverable. The plaintiff refused to provide such particulars on the basis that it was not relevant.
The defendant subsequently brought a Motion requiring the plaintiff to provide the necessary documentation regarding the settlement with the tortfeasor. Justice Beveridge considered himself bound by the decision of the Court of Appeal in Dugas-Mattatal v. General Accident Assurance Co. of Canada (1994), 128 N.S.R. (2d) 1 and held that the Section B benefits paid or available to an insured are relevant to the extent of the liability of a third party and his or her insurer. The payments available or received by an insured from a third party are not relevant to the extent of the liability of a Section B insurer. The Motion by the defendant was dismissed with costs to the plaintiff in the amount of $500.
￼Gaudet v . New Brunswick (Acting Superintended of Insurance), 2008 NBCA 52
The appellant was involved in a rear end motor vehicle accident and received “voluntary” advance payments from the other driver’s insurance company. These payments were discontinued around the same time the appellant retained legal counsel. Pursuant to s. 396.2 of the Insurance Act, the appellant filed a complaint with the respondent that the actions of the other driver’s insurance company constituted “unfair or deceptive” practice. The respondent dismissed the complaint, but it was quashed on judicial review because the respondent failed to address the primary question of “whether the reason for the cessation of advance payments was the fact that the appellant had retained legal counsel”.
The applications judge re-submitted the question back to the superintendent who answered the question in the negative. The appellant again applied for judicial review but the application was dismissed. The ppellant appealed the decision of the second applications judge and the appeal was again dismissed. The appellant’s argument that the complaint process was a bifurcated one had never been argued before the first applications judge and therefore the Court of Appeal held that the argument came too late. The Court also stated that there is no statutory requirement that all complaints must be dealt with in the two step procedure advanced by the appellant. There was no basis in law or in fact for interfering with the superintendent’s second decision. The appeal was dismissed and the aespondent was awarded costs in the amount of $3,500.