Court File and Parties
CITATION: Kurisko v. Security National Inc. Co., 2014 ONSC 85
COURT FILE NO.: DC-12-007
DATE: 2014-1-06
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: Stanley Roy Kurisko and Joan May Kurisko v. Security National Insurance Company and Meloche-Monnex Financial Services Inc.
BEFORE: Sproat J.
COUNSEL: Stanley R. Kurisko, for the Appellants
R.W. Howard Lightle, for the Respondents
HEARD AT THUNDER BAY: December 5, 2013
E N D O R S E M E N T
SPROAT J.
[1] I agree with the reasoning of Mulligan J. and the result he reached.
[2] Mr. Kurisko’s auto insurer sent him a letter in early November 2006, indicating that he could obtain replacement value insurance for a period of “up to” five years from the date of delivery of his vehicle. Mr. Kurisko’s vehicle had been delivered on September 1, 2004. In fact, the policy that was issued defined the coverage to end on whatever was the policy expiry date that fell between four years and five years after the new vehicle was delivered. For Mr. Kurisko the policy expiry date was December 17, so the replacement value insurance was available to December 17, 2008.
[3] Mr. Kurisko’s evidence concerning his conversation on November 9, 2006, with the insurance company agent was uncontradicted. I, therefore, proceed on the basis that the agent made a mistake and told Mr. Kurisko that replacement value coverage was available for five full years following delivery of his vehicle.
[4] All drivers are, however, familiar with the fact that insurers typically send out policy documents together with invoices. I do not, therefore, think it tenable to suggest that the contract was formed and that rights “crystallized” at the time of the November 9, 2006, conversation.
[5] Mr. Kurisko testified he keeps his insurance records and that he does not believe he received the November 10, 2006, letter from his insurer which contained the policy documents defining the period of coverage. It would be unlikely that the letter was not sent and received. Having said that, errors do occur and there was some evidence of errors on the part of the insurer in dealing with Mr. Kurisko. I proceed with my analysis on the basis that Mr. Kurisko did not receive the November 10, 2006, letter.
[6] This case is very different from Tilden Rent-A-Car v. Clendenning, 18 O.R. (2d) 601 (C.A.). In Tilden, buried in fine print which consumers rarely read (and Tilden knew Clendenning had not read) were extremely onerous conditions which negated the insurance coverage the renter paid for. For example, if the renter had an accident while driving the vehicle 1 mph over the speed limit or consumed any amount of alcohol before driving then coverage was negated. Those conditions would surprise and shock any renter. Further, such a condition would operate to deprive the renter of the very coverage the renter paid for.
[7] Unlike Tilden, I see nothing in this definition of the duration of the replacement value coverage that would surprise or shock anyone. There was some logic in having the term of the replacement value coverage coincide with the term of the policy. Further, there is no element in this case of the insurer charging a premium for a period of time and then seeking to deny coverage for a loss within the period.
[8] I also accept the general principle from Patterson v. Gallant, [1994] 3 S.C.R. 1080, at para 10, that in the case of automobile insurance, when policies are sent out annually, “a separate and distinct contract comes into existence at each renewal”. In October 2008, policy renewal documents were sent to, and received by, Mr. Kurisko. The cover letter specifically noted that the replacement value insurance coverage expired and would not be applicable during the term of the policy renewal. Mr. Kurisko understood and accepted this. He paid a reduced premium for the renewal term. When the accident occurred on July 6, 2009, he had not paid for, and did not have, replacement value coverage.
[9] Mr. Kurisko argued that by virtue of the misrepresentation in November 2006, he should not be bound by the policy provisions in July 2009. Mr. Kurisko did not, however, rely upon the alleged misrepresentation to his detriment. In other words, he did not testify at trial to the effect, “I wanted the coverage for five years to the day and would not have purchased it if I had known it was only available for four years and three months”. The only reasonable conclusion is that if he had read the policy language he would have taken the coverage for the time period it was available and been in the same position he is in today. Any claim for damages for misrepresentation must fail. It follows that there is also no basis for an estoppel.
[10] As such this appeal must be dismissed.
[11] With respect to costs, the parties agreed that win or lose the appropriate amount was $3000, inclusive of HST plus assessable disbursements; not to include travel costs. As such, I award these costs payable by the appellants to the respondents.
SPROAT J.
DATE: January 06, 2014
CITATION: Kurisko v. Security National Inc. Co., 2014 ONSC 85
COURT FILE NO.: DC-12-007
DATE: 2014-1-06
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Stanley Roy Kurisko and Joan May Kurisko v. Security National Insurance Company and Meloche-Monnex Financial Services Inc.
BEFORE: Sproat, J.
COUNSEL: Stanley R Kurisko, for the Appellants
R.W. Howard Lightle, for the Respondents
ENDORSEMENT
Sproat, J.
DATE: January 06, 2014