Neutral Citation: 1995 ONICDRG 13

A-006649

ONTARIO INSURANCE COMMISSION

BETWEEN:

MARY McLEAN

Applicant

and

WELLINGTON INSURANCE COMPANY

Insurer

File No. A-006661

AND BETWEEN:

MARY McLEAN

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Mary McLean (née Tobin), was a pedestrian who sustained injuries when struck by a motor vehicle on December 29, 1992. At the time of the accident, the Applicant was not a named insured under a contract evidenced by a motor vehicle liability policy. She applied for statutory accident benefits from Wellington Insurance Company (Wellington) payable under Ontario Regulation 672¹. Prior to the accident, Wellington had issued a standard Ontario Automobile Policy of insurance O.P.F. 1 to Dan McLean. The Applicant and Dan McLean were subsequently married on June 5, 1993.

Wellington denies coverage on the basis that the Applicant was not an insured person under Dan McLean's policy because she was not the spouse of Dan McLean when the accident occurred.

Wellington claims that the Applicant must seek statutory accident benefits from Economical Mutual Insurance Company (Economical), the Insurer of the motor vehicle that struck her.

At mediation, both Insurers agreed to contribute equally to payment of the Applicant's statutory accident benefits, on a without prejudice basis, pending an arbitrator's decision as to which Insurer is liable.

The issue in this hearing is:

1. Whether the Applicant was an "insured person" under section 2.2.3(e) of Dan McLean's policy with Wellington (section 2 of the Schedule).

The Applicant also claims her expenses incurred in the hearing.

Result:

1. The Applicant was not an "insured person" under section 2.2.3(e) of Dan McLean's policy with Wellington. The Applicant was no longer the "spouse" of the named insured when the accident occurred. Accordingly, Economical is liable to pay any statutory accident benefits to which the Applicant is entitled.

The Applicant is entitled to her expenses of this arbitration.

Hearing:

The hearing was held in Toronto, Ontario, on June 1, 1994, before me, Janice Mackintosh, arbitrator. The parties filed an agreed statement of facts dated June 10, 1994, attached as Schedule 1 to this decision. Written submissions from the parties were also received after the hearing, dated September 19, 1994, September 20, 1994, September 21, 1994 and December