Posted: September 26, 2016
By: Steve Rastin

On October 9, 2008, Tate Moran was injured in a motor vehicle accident. At the time of the accident, Ms. Moran was only 13 years old and as a result, her mother assisted her in filling out an Application for Accident Benefits (OCF-1) and Activities of Normal Life Form (OCF-12). Both forms were submitted to Economical Mutual Insurance Company on  November 12, 2008, as well as a Disability Certificate (OCF-3) indicating that Ms. Moran did not suffer a complete inability to carry on the activities of her normal life.

On December 4, 2008, Economical issued the applicant an Explanation of Benefits (OCF-9) denying her non-earner benefits, on the basis that she did not meet the complete inability test. In 2012, Ms. Moran sought mediation to challenge Economical’s decision, which was not successful and as a result, she filed an Application for Arbitration in 2013. Prior to the arbitration hearing in 2016, Economical received a second Disability Certificate on behalf of the applicant, which acknowledged that Ms. Moran did suffer a complete inability to carry on a normal life. However, Economical argued that Ms. Moran’s claim was now statute barred as per The Limitations Act. A pre-arbitration hearing took place, where the arbitrator had to rule on two specific issues:

1.      Whether the applicant’s claim for non-earner benefits was statute barred as per the limitation period under the Limitations Act and the Insurance Act.

2.      Whether the applicant’s application for non-earner benefits could proceed to arbitration.

With regard to the first issue, Economical argued that the limitation on the applicant’s claim began to run on December 4, 2008, and not on November 23, 2012 when she came of age, as claimed by the applicant. The insurer argued that the applicant’s mother was acting as her representative for the claim because per the Dispute Resolution Practice Code (DRPC), when a parent of a minor applies for mediation or any other legal proceeding on the child’s behalf, they are acting as a Litigation Guardian. Therefore, Economical argued, the claim was completed on December 4th regardless of the applicant’s age at the time, and more than two years had elapsed since that date.

Regarding whether the applicant was eligible for non-earner benefits prior to January 2016, Economical referenced the decisions in Steele v. Intact Insurance Co. and Sagan v. Dominion of Canada General Insurance Co.  Economical argued that the applicant was ineligible for non-earner benefits because the original Disability Certificate noted that she did not suffer from a complete inability to carry on normal activities.

The applicant countered Economical’s claims by first dismissing their argument that her mother acted as a Litigation Guardian on her behalf. According to the applicant, although her mother had assisted in the completion of her application for benefits, her mother was not her Litigation Guardian and therefore, the limitation period under the Limitations Act and the Insurance Act did not begin until Ms. Moran reached the age of 18 on November 23, 2012. The applicant also disagreed with Economical on the issue of non-earner benefits by noting that there is no requirement under the Insurance Act, with regard to a Disability Certificate stating that an applicant must meet the criteria for non-earner benefits. Therefore, the applicant felt that the results of the first Disability Certificate were irrelevant.

Relying on the decision in Novakovic and Coseco Insurance, which confirmed that a minor’s rights are postponed until they reach the age of majority, the arbitrator agreed with the applicant and disagreed with Economical that the applicant’s mother acted as the equivalent of a Litigation Guardian. The arbitrator noted that the Limitations Act specifically requires the official appointment of a Litigation Guardian for the limitation period to begin to take effect and at no point does it reference a parent, representative or guardian. In other words, unless there was an official declaration of the applicant’s mother as Ms. Moran’s Litigation Guardian, then she was not so designated, and therefore the limitation period did not start in 2008.

In regard to the issue of non-earner benefits and the Disability Certificate, the arbitrator noted that according to case law, the issue wasn’t so much whether or not the applicant was deemed unable to carry on normal life but whether or not a Disability Certificate was filed at all. That, the arbitrator noted, is what Sagan v. Dominion of Canada General Insurance Co., which was referenced by Economical, is truly about. The case dealt with whether or not the limitation period should run if the Disability Certificate was not filed. The Court of Appeal decided that it couldn’t.

In the current case, the arbitrator ruled that the applicant had not filed a complete Disability Certificate because the submitted document did not meet all the criteria of a Disability Certificate, as per The Statutory Accident Benefits Schedule. Specifically, the applicant failed to include an estimate of how long the disability for which the application of benefits was being made, would last. That said, the arbitrator concurred with the reasoning in Beltrame v. Dominion of Canada General Insurance Co. where it was decided that the decision should not rest on whether or not the Disability Certificate criteria was met but whether the totality of the dealings between the insurer and the insured established an application for a benefit.

Similar to the arbitrator’s decision in Beltrame, the arbitrator in this case found that Ms. Moran had furnished sufficient information in the OCF-12 to establish an application for non-earner benefits and enabling Economical to make an informed decision. Further, at no point did Economical deny the claim on the basis that no (or an incomplete) Disability Certificate had been submitted.  The arbitrator concluded that the applicant was not statute barred from pursuing her claim for non-earner benefits and was also not precluded from proceeding to arbitration with her claim for non-earner benefits.

Insurance law is complex, even more so when minors are involved.  If you are having difficulties making a claim or your claim has been denied, it is in your best interests to seek legal advice from an experienced personal injury lawyer who can guide you in the right direction and ensure that you receive all the benefits to which you’re entitled. Our team of skilled lawyers at Rastin & Associates have years of experience in successfully representing our client’s interests in claims against insurance companies, and many of our cases involve obtaining benefits for children. Please do not hesitate to call today to find out how we can help expedite your claim.

You can call us at  844-RASTIN1 or  email Rastinlaw.com

 


 
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Posted under Accident Benefits, Car Accidents