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New Accident Benefit Cases

1. On December 23, 2011, the Court of Appeal ruled that pursuant to the SABS both physical and emotional/behavioural impairments can be combined when considering whether an insured person has a 55% whole person impairment and therefore meets the criteria for having sustained a catastrophic injury: Kusnierz v. Economical Mutual, 2011 ONCA 823

2. Following a motion for summary judgment the plaintiff's claims for punitive, aggravated, and exemplary damages, and damages for negligence were dismissed. The court found that the plaintiff was entitled to proceed with claims for breach of contract. The court also dismissed the plaintiff's claim for breach of fiduciary duty. The case concerned facts where an insured person continued to work for almost 8 years after an accident prior to making a claim for income replacement benefits. Wadhwani v. State Farm Mutual Automobile Insurance Company, 2010 ONSC 2479 (CanLII) - 2010 - 5 - 10

Update - Wadhwani v. State Farm Mutual Automobile Insurance Company, October 3, 2011 Superior Court of Justice - Plaintiff's action seeking income replacement benefits from August 18, 2005 to date and ongoing and assessment expenses dismissed by jury following 11 day trial before Madam Justice C. Brown.

3. A FSCO arbitrator concluded that an insured was involved in an "accident" in accordance with the SABS, when he fell while attempting to perform a handstand/headstand manoeuvre in a limo van. The arbitrator found that the vehicle was a "party vehicle". She felt that the activities of the passengers were integral to the ordinary use of the limo bus. She did not conclude that the activity was so "off-beat" or extreme so as to remove it from satisfying the purpose for which the vehicle was used: Whipple v. Economical Mutual Insurance Co., FSCO Arbitration No. A09-002745 (Nov. 15, 2010).
On appeal to the Director's Delegate, the underlying arbitration decision was upheld. Whipple v. Economical Mutual Insurance Co., FSCO Appeal No. P10-00020, (Oct.6, 2011)

4. In respect of accidents before September 1, 2010, a "completed application for benefits" in a priority dispute need not take the form of an OCF-1. The document need only provide sufficient particulars to reasonably assist the insurer with processing the application, identifying the benefits to which the applicant may be entitled, and assessing the claim: ING Insurance Company v. TD Insurance Company, 2010 ONCA 559

5. Improper termination of IRB benefits does not oblige an insurer to pay IRB benefits in the absence of disability entitlement. A claimant must prove disability entitlement under the SABS: Stranges v. Allstate Insurance Company, 2010 ONCA 457.

6. LTD benefits could not be deducted from the income replacement benefits paid by the accident benefit carrier where the LTD carrier initially disputed the insured’s entitlement to LTD and eventually arrived at a lump sum settlement with the insured: Vanderkop v. Personal Insurance Company of Canada, [2009] O.J. No. 2616 (C.A.).

7. Court ordered the plaintiff to submit to cross-examination on a supplementary affidavit of documents about the nature of the content posted on Facebook: Leduc v. Roman, [2009] O.J. No. 681 (S.C.J).

8. Where an insured has a GCS score of 3 approximately 16 minutes post accident which increases to 14 approximately 42 minutes post accident and stays at or above that level, a catastrophic impairment has been sustained so long as a brain impairment is found to be present: Liu v. 1226071 Ontario Inc. (c.o.b. Canadian Zhorong Trading Ltd.), [2009] O.J. No. 3014 (C.A.).

9. Absent rare and exceptional circumstances, information about reserves is irrelevant and not producible: Uka v. Aviva Canada Inc., [2009] O.F.S.C.D. No. 94 (Appeal).