In a personal injury action involving statutory accident benefits and long-term disability benefits, the automobile insurer cross‑claimed against the long‑term disability insurer for reimbursement of income replacement benefits paid to the insured.
The cross‑claim alleged unjust enrichment, asserting that the LTD insurer should have paid benefits first.
The court held that under s. 7 of the Statutory Accident Benefits Schedule an automobile insurer may deduct LTD payments only if they are actually received or the insured failed to apply for them.
Because the insured applied for LTD benefits and the LTD insurer denied the claim, the automobile insurer could not deduct hypothetical benefits or recover them through unjust enrichment.
The court found no enrichment, no corresponding deprivation, and no unjust retention, and struck the cross‑claim.
