Neutral Citation: 1995 ONICDRG 74
File No. A-012264
ONTARIO INSURANCE COMMISSION
BETWEEN:
CATERINA PINTUS
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Issues:
The Applicant, Caterina Pintus, was injured on May 17, 1991 when a backhoe struck her. She applied for and received statutory accident benefits from her Insurer, State Farm Mutual Automobile Insurance Company (State Farm), payable under Ontario Regulation 6721. She sought further benefits. The parties were unable to resolve their dispute through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended. At the pre-hearing, State Farm submitted that the backhoe was not an automobile, and that therefore State Farm did not have to provide coverage for accident benefits. It was agreed that this would be dealt with as a preliminary issue based on written submissions. It was also agreed that the owner of the backhoe, Elmara Construction Co. Limited, could submit evidence by way of written submissions. The hearing on the merits of the claim is scheduled for June 26 and 27, 1995.
The issues in this hearing are:
Is the backhoe an automobile within the meaning of the Insurance Act, so that Mrs. Pintus would be an "insured person" under the State Farm policy?
If not, is Mrs. Pintus required to repay the benefits she has received from State Farm and in what amount?
Result:
The backhoe is an automobile within the meaning of the Insurance Act and Mrs. Pintus is an "insured person" under the State Farm policy.
Mrs. Pintus is not required to repay the benefits she has received from State Farm.
Facts:
I received written submissions from which I have taken the following facts. On May 17th, 1991, Ben Panzica was operating a backhoe owned by Elmara Construction Co., Mr. Panzica's employer. Elmara was performing construction work in Windsor for the City of Windsor on Niagara Street, where Mrs. Pintus lived. Both ends of Niagara Street had been blocked off, and the street was closed to traffic. Mrs. Pintus was a pedestrian when the backhoe struck her and injured her. As she was insured under an automobile policy with State Farm Mutual Insurance Company under policy numbered 1515 847 600, she made a claim to State Farm and received disability benefits, totalling approximately $53,000 to date. The backhoe was not required to be insured under an automobile policy, but was insured under a Composite Mercantile Policy. On July 31, 1991, the Applicant commenced an action in tort against Elmara Construction Co. Limited, Ben Panzica, The Windsor Utilities Commission and the Corporation of the City of Windsor, for damages suffered as a result of the negligence of Ben Panzica. On May 4th, 1994, Mrs. Pintus applied for payment of certain additional medical expenses allegedly payable pursuant to the terms of the policy of automobile insurance issued by State Farm.
State Farm wants repayment of the benefits it has paid. At the pre-hearing, State Farm raised the issue that it should not have provided coverage in the first place on the ground that a backhoe is not an automobile.
The parties agreed that the issue of coverage would be determined as a preliminary matter based on written submissions.
Findings:
The Schedule provides a benefit for insureds injured in automobile accidents. Section 2 of the Schedule provides as follows:
"accident" means an incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury or causes damage to any prosthesis, denture, prescription eyewear, hearing aid or other medical or dental device;
"insured automobile," in respect of a particular motor vehicle liability policy, means the described automobile and includes a newly-acquired or temporary substitute automobile, all as defined by the policy;
"insured person," in respect of a particular motor vehicle liability policy, means,
(e) the named insured, his or her spouse and any dependant of either of them who is not the occupant of an automobile or of rolling stock that runs on rails who is involved in an accident.
The word "automobile" (as opposed to "insured automobile") is not defined in the Schedule, but it is defined in section 1 of the Insurance Act:
"automobile" includes a trolley bus and a self-propelled vehicle, and the trailers, accessories and equipment of automobiles, but does not include railway rolling stock that runs on rails, watercraft or aircraft;
[Emphasis added throughout.]
To paraphrase Scott, D.C.J., in Speirs et al. v. Vanhelvort et al. (1989), 1989 CanLII 10422 (ON HCJ), 39 C.C.L.I 229 (Ont. Dist. Ct.): under this section, a backhoe, being "self-propelled," is undoubtedly an automobile.
In light of the above definitions, I make the following findings: The backhoe is an automobile. This automobile caused an accident. Mrs. Pintus was involved in that accident. The accident injured Mrs. Pintus. Mrs. Pintus fits the definition of "insured person," and is entitled to accident benefits.
State Farm relies on various definitions in the Highway Traffic Act, R.S.O. 1990, c.H.8 and in the policy for its position that Mrs. Pintus was not injured by an automobile.
I find the definition of "motor vehicle" that State Farm relies upon in section 1 of the Highway Traffic Act to be irrelevant. That definition excludes road-building machines within the meaning of that Act. The definition of "road-building machine" includes backhoes. Accordingly, a backhoe is not a motor vehicle under the Highway Traffic Act. This sheds no light on whether a backhoe is an automobile under the Insurance Act. In fact, I read the definition of "motor vehicle" as suggesting that "automobile" is the broader term, and that motor vehicles are a subset of automobiles. A machine may be an automobile but not a motor vehicle.
State Farm further refers to the Compulsory Automobile Insurance Act, R.S.O. 1990, c.C.25 and to the Motor Vehicle Accident Claims Act, R.S.O. 1990, c.M.41, which use the terms "motor vehicle," "insured motor vehicle," or "motor vehicle liability policy." Again, this material does not purport to define an "automobile" under the Insurance Act.
State Farm also refers to section 226(2) of the Insurance Act, which states in part: "This Part [Part VI] does not apply to a contract providing insurance in respect of an automobile not required to be registered under the Highway Traffic Act...". The clear implication is that some automobiles may not be required to be registered. In its submissions, State Farm affirms that backhoes are not required to be registered under the Highway Traffic Act. That does not mean that the backhoe is not an automobile.
State Farm also relies on the definition of "the automobile" in Part E of the automobile policy. It suggests that, as the backhoe did not fit that definition of "automobile," then Mrs. Pintus was not injured by an automobile. Therefore, she was not involved in an accident within the definition in the policy or Schedule, and does not meet the definition of "insured person."
I find that the definition in Part E of the policy is irrelevant to the issues at hand, as it only defines the insured automobile, being the described automobile and such additional types of automobile as are defined in that Part. The definition of "accident" in the Schedule requires that there be an incident in which the use or operation of an automobile causes injury: it does not require that an insured automobile (as defined in Part E of the policy) be involved in the incident. I agree with Binks J. in Heath v. Co-Operators General Insurance Co. (1994), 1994 CanLII 19781 (ON CTPD), 24 C.C.L.I. (2d) 183 (Ont. Ct. Gen. Div.), who stated: "There appears to be no definition of the term 'automobile' in the plaintiffs' policy of insurance with the defendant relevant to the issues in this case."
The definition of "insured person" under the policy (at paragraph 2.2.3 of the policy) does not reproduce exactly the definition in the Schedule. In particular, under clauses (a), (b) and (d), the Schedule uses the phrase "the insured automobile", where the policy only uses "the automobile." Elsewhere, such as in the definition of "accident," both the policy and the Schedule use the phrase "an automobile." Counsel for State Farm relied upon the remarks of Scott, D.C.J., in Speirs (supra), who, in analyzing the motor vehicle liability policy in effect before 1990, decided that the articles "an," "the" and "any" before the word "automobile" are irrelevant. On that basis, State Farm submitted that wherever the word "automobile" appears in the policy, the article preceding it is irrelevant, and the "automobile" referred to is that as defined in Part E — i.e., the insured automobile.
I find that this analysis cannot be applied to the present policy. The term "an automobile" in the definition of "accident" is not so restricted and can refer to any vehicle that is an automobile within the meaning of the Insurance Act.
State Farm also relied upon subsection 226(2) of the Insurance Act to suggest that the Act does not apply to this situation. Part VI of the Act deals exclusively with automobile insurance. Subsection 226(2) states:
(2) This Part does not apply to a contract providing insurance in respect of an automobile not required to be registered under the Highway Traffic Act unless it is insured under a contract evidenced by a form of policy approved under this Part.
Mrs. Pintus was struck by an automobile not required to be registered under the Highway Traffic Act. However, this is not a reason to deny her the benefits of her own insurance. Mrs. Pintus has a contract providing insurance in respect of an automobile required to be registered, as she has her contract with State Farm. Part VI applies to her. All that subsection 226(2) does is excuse insurers of backhoes from having to provide all the benefits set out in Part VI, unless they issued a contract in the form of an automobile policy. Mrs. Pintus has no contract with the insurer for Elmara Construction Co. Limited and is not subject to the limitations in that policy.
State Farm also sought to rely on the fact that Part VI of the Act contains its own definition of "automobile" in subsection 224(1): "In this Part, 'automobile', includes a motor vehicle required under any Act to be insured under a motor vehicle liability policy." I note that the definition uses the expansive word "includes" and not the restrictive word "means." I find that the definition of "automobile" in subsection 224(1) does not exclude a backhoe for the purposes of accident benefits under the Schedule.
State Farm also relied on the decision of McRae J. in Patel v. Mutual of Omaha Insurance Company (1988), 1988 CanLII 10350 (ON HCJ), 29 C.C.L.I. 243 (Ont.H.C.J.). This is a very short decision, rendered orally. The plaintiff's brother was killed in a single vehicle accident in India while driving a motor scooter. The position of the plaintiff, a beneficiary under a policy of insurance issued by the respondent, was that the motor scooter was an automobile as referred to in the policy. The plaintiff would have been covered if his brother were riding an automobile. The rationale of the decision is that the ordinary meaning of "automobile" does not cover a motor scooter. I distinguish this case on the basis that it determines a meaning of "automobile" for the pre-1990 policy, and does not concern the issue of a pedestrian being struck by a self-propelled vehicle of some sort. I also note that the decision does not refer to the definition of "automobile" in the Insurance Act, and for that additional reason, I respectfully decline to follow it.
State Farm also argues that Mrs. Pintus should be denied benefits on the basis that the backhoe was being used as a backhoe and not as a vehicle. State Farm cited no cases in support of this proposition. The issue before me is whether the use or operation of an automobile caused injury. Having reviewed the pleadings in the tort action, I find that the backhoe was being so used and operated. The pleadings clearly indicate that Mrs. Pintus was crossing Niagara Street when the backhoe backed up and hit her. I find that the backhoe was being used as an automobile, as it was moving under its own power along a road.
State Farm also suggested that it does not have to extend coverage because the accident occurred in a construction area on a roadway that had been closed to vehicular traffic. I can find no support in the Act or policy for this suggestion. I note that the roadway was a public highway, albeit closed for construction, and that backhoes do drive and are meant to drive on public highways.
Finally, State Farm relied on Hoffman v. I.C.B.C (1992), 1992 CanLII 15595 (BC SC), 15 C.C.L.I. (2d) 168 (B.C.S.C.), a case that turned entirely on the question of whether a tractor had to be registered under the British Columbia Motor Vehicle Act. The decision does not discuss whether or not a tractor is an automobile, and is of no assistance in the matter before me.
Order:
The backhoe is an automobile within the meaning of "accident" and Mrs. Pintus is an "insured person" under the State Farm policy.
Mrs. Pintus is not required to repay the benefits she has received from State Farm.
I leave the question of expenses to the main arbitration.
June 19, 1995
David J. Evans Arbitrator
Date