Neutral Citation: 1994 ONICDRG 117
File Nos. A-007417 and A-007645
ONTARIO INSURANCE COMMISSION
BETWEEN:
M.J.T.
Applicant
and
SIMCOE & ERIE GENERAL INSURANCE COMPANY
and
PILOT INSURANCE COMPANY
Insurers
DECISION
Issues:
An 18 year old young man, whose initials are M.J.T., was severely and permanently injured in a one car accident on August 16, 1991. He had stolen a vehicle. During a high speed chase with the police, the stolen car overturned, and crashed into the St. Clair River in Sarnia.
M.J.T. was thrown clear of the vehicle in the accident. He was rushed to hospital in critical condition. M.J.T. sustained a severe closed head injury, damage to his internal organs, multiple fractures of the spine and a broken leg. He was in a coma for a long time.
After months of care in various medical facilities, M.J.T. recovered somewhat. He remains a paraplegic and suffers other serious disabilities, which will likely require long-term attention from the health care community.
M.J.T. applied for statutory accident benefits, payable under Ontario Regulation 6721, from his parent's automobile insurance company, Simcoe & Erie General Insurance Company ("Simcoe & Erie"). He later applied for accident benefits from Pilot Insurance Company ("Pilot"), the Insurer of the vehicle he stole. Each company claimed the other was responsible for M.J.T.'s supplementary medical and care benefits.
This initial dispute was not resolved through mediation. M.J.T. applied for arbitration under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
The issue in this hearing is:
- Which Insurer is liable to pay M.J.T.'s accident benefits?
M.J.T. also claims his expenses incurred in the dispute resolution process.
Result:
Simcoe & Erie is liable to pay M.J.T.'s accident benefits.
M.J.T. is entitled to his expenses of the arbitration.
Hearing:
The hearing was held in Sarnia, Ontario, on September 20 and 21, 1994, before me, Fred Sampliner, arbitrator.
The proceedings were recorded by Donna Peache of Maxim Reporting Services.
Present at the Hearing:
Applicant:
M.J.T.
Applicant's
Vicki Edgar
Representative:
Barrister and Solicitor
Simcoe & Erie's
James R. Townsend
Representative:
Barrister and Solicitor
Pilot's
Harry Daniel
Representative:
Barrister and Solicitor
Witnesses:
M.J.T., applicant
Todd Welter, friend of applicant
James Allen, friend of applicant
Rebecca Lucas, friend of applicant
Donald Bacon, friend of M.J.T.'s parents
Darcy Rogers, friend of applicant
Sandra Smith, friend of M.J.T.'s parents
K.T., M.J.T.'s mother
M.R.T., M.J.T.'s father
Frank Beaver Montgomery, insurance adjuster
Arthur Power, insurance adjuster
Chris Molloy, friend of applicant
Donald McCracken, friend of applicant
The parties filed 15 exhibits, which are listed in Appendix A.
Pilot also filed three factum briefs.
Evidence and Findings:
When two or more insurers are involved in a vehicle occupant's claim for statutory accident benefits, the order of liability is determined by section 268(2) of the Insurance Act:
268--(2) The following rules apply for determining who is liable to pay no-fault benefits:
- In respect of an occupant of an automobile,
i. the occupant has recourse against the insurer of an automobile in respect of which the occupant is an insured,
ii. if recovery is unavailable under subparagraph i, the occupant has recourse against the insurer of the automobile in which he or she was an occupant,
M.J.T. was not specifically named as an insured person in his parents automobile insurance policy, which was in effect at the time of the accident. However, M.J.T. may be considered an insured person under the policy if he was a dependant of his parents at the time of the accident. Section 2(c) of the Schedule provides:
"insured person", in respect of a particular motor vehicle liability policy, means,
(c) the named insured, his or her spouse and any dependant of either of them while the occupant of any other automobile.
[emphasis added]
A dependant is defined by section 3 of the Schedule:
3(2) For the purposes of this Schedule, a person is a dependant of another person if the person is principally dependent for financial support on the other person or the other person's spouse. R.R.O. 1990, Reg. 672, s. 3.
[emphasis added]
Arbitrator Draper in B. and E. McDonald and State Farm Insurance Companies, March 11, 1993, OIC File No. A-001387, held that the words "principally dependent for financial support" mean more dependent upon the person named in the policy than upon any other source. In examining financial support, arbitrators have considered the amount, duration and character of the financial support provided, as well as an applicant's needs and means of self-support. Essentially, each case turns on its own unique facts. [D. Cattrysse and The Westminster Mutual Fire Insurance Company and Anglo Canada General Insurance Company, June 21, 1993, OIC File Nos. A-001618 and A-001789 (under appeal)]
M.J.T. is the eldest of four sons. His father, mother and the children reside in Sarnia. M.J.T.'s parents are both alcohol and/or drug users. M.J.T. was very unhappy with his family situation long before the accident.
M.J.T.'s troubled history during the two years before the accident was provided through his testimony, and that of his parents, their friends and acquaintances. The parties prepared a chronology of M.J.T.'s whereabouts, based upon various government, business and social program records. The records are lengthy, and for brevity's sake I summarize the relevant testimony and documentary information.
From these records and the testimony, M.J.T.'s difficulties can be traced to about two years before the accident. In June of 1989, M.J.T. was sentenced to one year probation, after being convicted of stealing and burning a car. At some time in late August or early September 1989, M.J.T. ran away from home and went to North Carolina. He returned to Ontario in September and, by his own choice, moved into a Sarnia youth home called the Inn of the Good Shepherd. The Inn of the Good Shepherd did not charge a fee to its youthful residents or their parents.
M.J.T. began attending grade 10 that fall, while living at the Inn of the Good Shepherd. He quit school on October 25, 1989, and never returned.
In early December 1989, M.J.T. applied to enter a special education program, called "Futures", run by Lambton College. At about the same time, he moved out of the Inn of the Good Shepherd. From the time M.J.T. left the Inn of the Good Shepherd in December 1989 until March 1990, M.J.T. lived at three different Sarnia addresses, none of which were his parents' home. Towards the end of March 1990, M.J.T. was terminated from the Futures program for missing classes. M.J.T.'s probation officer reported that he still did not wish to return to his parent's because of the drugs and bad environment. His mother had also been charged with a drug offense.
M.J.T. was in trouble with the law too. He was charged with attempted car theft on March 15, 1990. M.J.T. testified that he could not recall where he was living at the time he went to court, but the probation records indicate that at about this time he was living with a friend in Sarnia.
In May 1990, M.J.T. returned to the family home. It had been nine months since M.J.T. had run away to North Carolina. During this time the evidence suggests that M.J.T. received very little financial or other support from his parents.
M.J.T. spent most of the 1990 summer taking care of his younger siblings while living at the family home. At this time, his mother was serving a two month sentence for narcotics possession. M.J.T. babysat the whole day. When his mother returned from jail that summer, he babysat mainly on weekends.
M.J.T. also looked for work during the summer. He found a construction job, but was laid off for lack of work after four days. It appears that he had little else with which to occupy his time.
In the late summer, M.J.T. was in trouble again. He appeared in Provincial Court during August to answer charges of attempted theft. M.J.T. and some other youths had broken into a school and attempted to steal some electronic equipment. He pleaded guilty, and was sentenced to three months at a youth detention centre in Sarnia called Booth House. On December 19, 1990, M.J.T. was released from Booth House. He unhappily returned home.
M.J.T. and his parents resumed their stormy relationship. Just after the 1991 New Year holiday M.J.T. got into an argument with his parents. He told his probation officer that his parents had been drinking. In anger, M.J.T. left the family home, and went to live with a friend on a nearby native reserve. He returned home three days later because he felt he had no place to go.
Between January and March 1991, M.J.T. lived with his family off and on. The probation officer's notes place M.J.T. at his parent's home on January 24, 1991. However, the April 16, 1991 probation notes record that M.J.T. said he had moved out of his family's home to an apartment. According to these records, M.J.T. did not often return home until June 1991.
Todd Welter, M.J.T.'s friend, testified that he and M.J.T. often stayed at the Inn of the Good Shepherd during the winter and early spring of 1991. He testified that M.J.T. and he lived in a private apartment during April, but they moved out because they were unable to pay the rent. For a week thereafter, the two boys slept in a heating duct. Afterwards, Mr. Welter's testimony and other evidence suggests that M.J.T. drifted from one friend's place to another until June 1991.
Occasionally, M.J.T. lived with a "good Samaritan" family during the winter and spring of 1991. Mr. James Allen testified that Todd Welter introduced him to M.J.T. around January or February of 1991. Neither James Allen, Todd Welter nor M.J.T. were able to recall exactly when these two young men lived in the Allen household, but Mr. Allen did remember the general period as between January and June 1991. He recalled talking to M.J.T. sometime in May or June 1991 about returning to his parents home, since he had no money to live on.
Mr. Allen knew of M.J.T.'s difficulties with his parents. He testified that M.J.T. thought his parents' placed a great deal of blame on him, and that he did not want to return home. When Mr. Allen and M.J.T. went to the family home to pick up some of M.J.T.'s belongings, Mrs. T. greeted M.J.T. "with a viper's tongue".
Todd Welter testified that M.J.T. received some help from his parents during the winter and spring of 1991. He said that M.J.T.'s mother visited several times and brought clothes and food. M.J.T. also visited his parents, and received small amounts of money from time to time.
At about the time that the two friends moved in together, M.J.T. began attending classes at the Futures program again. He applied to re-enter the program in March 1991, using his parents address. He later changed this address to that of an apartment. The Futures records indicate that M.J.T. did not reside at the family home from April until June 1991.
The records of the Futures program also provide the sole independently created documentation of M.J.T.'s income. Futures paid each student a per diem allowance to encourage class attendance. The records indicate that M.J.T. was paid a total of $750 for his class attendances between April 15, 1991 and June 14, 1991. M.J.T. stopped going to classes after mid-June, and he was subsequently terminated from the program. After M.J.T.'s departure from Futures he had no other regular or significant income.
M.J.T.'s mother testified that she kept a place in the family home for her son, despite his long-term absences. She said that her son occasionally returned home to sleep, visit, borrow money or have a meal. I accept Mrs. T.'s evidence that their son came home irregularly until June 1991.
Mrs. T. testified about the percentage of the household budget allocated to M.J.T.'s support. Her evidence tends to show that she and her husband supported M.J.T. She applied a portion of family expenses to M.J.T.'s purported needs. However, this ignores that M.J.T. chose not to be at home or accept his parents support before June 1991.
Before June 1991, M.J.T.'s living expenses outside of the family home were negligible. He lived day to day. He paid nothing for lodging, except during the short stay with Todd Welter in the rented apartment. For the most part, M.J.T.'s board was provided at the facilities where he stayed. Court records demonstrate that his income from petty theft was small. The money that he earned from the Futures program was clearly his largest income, albeit short-termed. In short, M.J.T. had very little income or expenses while he was living on the street and in the various places that he stayed. M.J.T. accepted negligible support from his family from the time that he ran away to North Carolina up to June 1991. Consequently, during that period he was not principally dependent upon his parents for support.
During the first half of June 1991, M.J.T. resumed a more regular residence with his family. M.J.T. testified about his life during the three months immediately before the accident. At times during his evidence he was not able to recall events. His speech was difficult to understand, and his answers sometimes needed repetition. Despite M.J.T.'s speech problem and the gaps in his memory due to his injuries from the accident, I found him to be candid, forthright and credible.
M.J.T. said that he lived at his parent's home from early June until the accident, although he admitted that he stayed away some nights. Sometimes he slept at his girlfriend's or stayed out all night with friends.
Darcy Rogers, M.J.T.'s former girlfriend, testified that she spent considerable time with him during the six months before the accident. They were in the Futures program together until M.J.T. stopped attending classes. M.J.T. stayed nights at her house even after he moved back to his parent's home.
M.J.T.'s daytime activities were much the same as the previous summer. M.J.T. testified that he babysat and cooked some of the family meals. After he stopped attending the Futures program in June 1991, he had little to do but "hang out".
On June 19, 1991, M.J.T. stole two bags of chips, dip, two submarine sandwiches, and cigarettes from a variety store. At a court hearing on the theft charges M.J.T. agreed to observe a 9:00 p.m. to 6:00 a.m. curfew at his mother's home. However, in his testimony, M.J.T. admitted that he did not abide by this agreement. M.J.T.'s mother testified that she was lenient about complying with the curfew during the summer because M.J.T. had behaved himself in the family.
The probation officer's notes shed light on M.J.T.'s life at this time. The July 17, 1991 entry states that M.J.T. reported to his probation officer that he had recently been charged with two thefts on two separate occasions and a breach of probation. Both times he was intoxicated. In the first instance, M.J.T. said that he was living on the streets and had no money. For the second offence, which took place a week after the first, he reportedly lived at his parents. M.J.T. also admitted he had lied to the officer when he said, on June 18, 1991, that he was living with his parents. He still hated living at home, and could not tolerate his parents' drinking.
The evidence that M.J.T. stayed overnight with his girlfriend, did not abide by the curfew, was involved in criminal activity and still had problems with his parents strongly suggests that while M.J.T. formally moved to his parents' home in June, he spent as much time away as he could.
Just after he committed the two criminal offenses in June 1991, M.J.T. went with his family on vacation. Donald Bacon, a friend of M.J.T.'s parents, testified that his family and the Ts, including M.J.T., travelled to Cedar Point amusement park, and stayed a week. M.J.T.'s entrance pass with his photograph and the records of the trailer home rental corroborate the witness' testimony that M.J.T. was with his family at Cedar Point from June 29, 1991 until July 6, 1991. M.J.T., his parents and Donald Bacon all testified that during the vacation M.J.T.'s parents gave him considerable spending money, park fees, food and lodging.
After returning home from the family vacation, M.J.T. resumed his unlawful activities. On July 25, 1991, he and two other boys broke into a home near his parents' house and cooked a meal. They left, possibly taking some property with them. Just before the August 16, 1991 accident, M.J.T. recalled breaking into and stealing some cash from a car.
Mr. T. testified about M.J.T.'s life that summer. He said that M.J.T. moved home around June 10, 1991, and was around all that summer. According to Mr. T., he and his wife provided M.J.T. with food, clothing and shelter. Additionally, he and his wife provided for M.J.T.'s expenses of the family vacation, paid him to babysit his younger siblings and also bought him a new bicycle.
Mrs. T. testified that M.J.T. ate most of his meals at home after June 1991. She said that M.J.T. usually had breakfast at home with the family, but went out for lunch. Mrs. T. said that M.J.T. knew dinner was served at 5:00 p.m., and he often came home.
I have concerns about Mr. and Mrs. T.'s general credibility. Both parents have criminal records and Mr. T. admitted that he had lied to police about M.J.T.'s whereabouts, shortly before the accident. However, there is credible evidence to substantiate Mr. and Mrs. T.'s story.
A casual acquaintance, Rebecca Lucas, testified about her conversation with M.J.T. on the day before the accident. Ms. Lucas met M.J.T. in the spring of 1991. M.J.T. and his friend Todd Welter had no place to stay, and Ms. Lucas kindly allowed the two to live at her farm for about 10 days. During June 1991 she met M.J.T. again. He told Ms. Lucas that he was in the Futures program, but complained that he had no money or means of transportation. On the day before the accident, Ms. Lucas chanced to recognize M.J.T. driving by her farm in a late model car. She wondered where he had gotten it. During the conversation, M.J.T. told Ms. Lucas he was back living with his parents. Ms. Lucas has no stake in the outcome of this matter, through friendship or otherwise. She is an independent and credible witness, and I find her testimony reliable.
Two of M.J.T.'s friends also testified about their conversations with M.J.T. just before the accident. Chris Molloy testified that M.J.T. slept at his house for two nights before the accident. They drank and did drugs. M.J.T. told him that he was living with his parents, but they frequently fought and consequently M.J.T. either left or was kicked out. He had no idea how often M.J.T. was at home.
Donald McCracken also partied with M.J.T. at the Molloy house on the evening of the accident, but he was unsure whether M.J.T. was living at home.
Conclusion:
The testimony of M.J.T., his friends and family members, together with the documents and independent testimony of Rebecca Lucas, persuade me, on a balance of the probabilities, that M.J.T. was living at his parents' home for at least two months before the accident. I conclude that he returned home primarily because he had no means to independently support himself.
M.J.T. kept away from his parents as much as possible, coming home for meals, a bed, to visit, babysit and borrow money. After he left Futures, M.J.T. had no means of support. His attempts at crime were petty and largely unsuccessful, and did not provide him with a source of income. In the absence of any evidence to the contrary, I find on balance that M.J.T.'s parents were his main support at the time of the accident by providing food, lodging and spending money. Therefore, Simcoe & Erie is responsible for paying M.J.T.'s statutory accident benefits.
Pilot's Submissions:
Pilot is the insurer of the stolen vehicle. Pilot argued that as a matter of public policy, the insurer of a stolen vehicle should not be held liable to pay statutory accident benefits to the criminal who committed the theft. Pilot also asserts that it did not receive notice of the claim within two years of the date of the accident, and that it is time-barred.
Although I appreciate that the public policy issue here is important, I have concluded that the liability rests squarely on Simcoe & Erie. Therefore, I do not need to address it.
Expenses:
It is appropriate in this case to grant M.J.T. his arbitration expenses. I remain seized if there is a dispute about particulars.
Order:
Simcoe & Erie will pay M.J.T.'s statutory accident benefits.
Simcoe & Erie will pay M.J.T. his expenses of the arbitration.
December 16, 1994
Fred Sampliner Arbitrator
Date
APPENDIX A
Exhibits:
Medical Brief of M.J.T.
Photocopies of Ontario Court (Provincial Division) records
Productions Brief of M.J.T.
Photocopy of Ministry of Community and Social Services letter, dated September 19, 1994
Photocopies of the 1989 and 1990 Revenue Canada returns of M.R.T. and K.T.
Photocopies of Donald Bacon's vacation expenses
Photocopy of M.J.T.'s Cedar Point pass
Photocopies of the 1989-1990 and 1991-1992 Sarnia/Petrolia and surrounding area Bell Telephone listings for the T. family
Photocopies of Ontario Provincial Police Occurrence Reports
Chronology of M.J.T.'s recorded addresses
Photocopies of M.J.T.'s records at the Lambton College Futures Program
Photocopies of Pilot Insurance Company and Simcoe & Erie General Insurance Company correspondence
M.J.T.'s Application for Accident Benefits to Pilot Insurance Company, dated November 2, 1993
Photocopy of the discovery transcript of M.J.T.'s father, sworn May 10, 1993
Photocopy of the discovery transcript of M.J.T.'s mother, sworn May 10, 1993