Citadel General Insurance Company v. Coachman Insurance Company, 1997 ONICDRG 193

Neutral Citation: 1997 ONICDRG 193

Appeal P96-00013

CITADEL GENERAL INSURANCE COMPANY

Appellant

and

COACHMAN INSURANCE COMPANY

Respondent

and

JOSEPH ADDAI-AGYEKUM

Respondent

Before:

David R. Draper, Director's Delegate

Counsel:

Harry P. Brown (for Citadel)

Ivan Luxemberg (for Coachman)

Joseph Addai-Agyekum did not participate personally or through counsel

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The appeal is dismissed and the arbitration order dated October 13, 1995, is confirmed.
No appeal expenses are payable.

October 27, 1997

David R. Draper Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This appeal involves a dispute between two insurers about which company is responsible for paying accident benefits to Joseph Addai-Agyekum.

Mr. Addai-Agyekum was injured while driving a taxi owned by someone else and insured by Coachman Insurance Company ("Coachman"). His spouse had a personal automobile insurance policy issued by Citadel General Insurance Company ("Citadel"). Because the accident was in October 1993, the arbitrator applied the provisions of the Insurance Act then in effect (Bill 68), Ontario Regulation 672/90, Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 ("the Schedule"), and the standard owner's policy (O.P.F.1).

The arbitrator concluded that Mr. Addai-Agyekum's spouse's personal insurer, Citadel, was responsible for paying his benefits. Citadel appeals this decision.

Three other similar appeals were heard on the same day as this one.¹ As a result, I had the advantage of hearing submissions from a number of experienced counsel.

All four appeals involve someone injured while an occupant of a vehicle they did not own or insure. The common question is whether they should claim accident benefits from the insurer of that vehicle or their own insurer (or their spouse's). However, the cases are not identical.

Three involve someone driving a commercial vehicle, either a taxi or a heavy truck. In the fourth, the injured person was a passenger in a car owned by someone else. Also, due to the dates of the accidents, three cases are decided under the legislation in effect until December 31, 1993 (Bill 68), while one involves the later scheme (Bill 164).

In each case, the arbitrator concluded that the person's own insurer (or the spouse's) was responsible for paying accident benefits. Those insurers appealed. Because of the differences among the cases, the appeals were not formally consolidated and separate appeal decisions are being issued.

III. BACKGROUND

The facts are not contested. On October 21, 1993, Mr. Addai-Agyekum was injured while driving a taxi with passengers in the vehicle. He originally purchased this vehicle, but transferred the registration to Irving Verman, who owned a taxi licence. The automobile, with its taxi plate, was leased back to Mr. Addai-Agyekum for his use. The taxi was operated as part of a fleet known as Empire Taxi Inc., a company owned by Larry Labovitch.

The taxi fleet was insured by Coachman Insurance Company ("Coachman"). The named insured under the policy was "Empire Taxi Inc. and/or Larry Labovitch." Coachman charged a flat rate premium per vehicle, the total premium being determined by the number of vehicles, not the identity of the drivers. Mr. Addai-Agyekum reimbursed Empire Taxi for the cost of insurance as part of his weekly payments.

Mr. Addai-Agyekum's spouse owned an automobile - a Chevrolet. At the time of his accident, this vehicle was insured by Citadel. The named insured on the policy was "Patricia Addai-Agyekum."

Following the accident, Mr. Addai-Agyekum applied to Coachman for accident benefits, but his claim was refused. He then applied to Citadel.

The arbitrator concluded that Mr. Addai-Agyekum was not excluded under the Citadel policy and, therefore, was an "insured person" under both polices. Because he was the spouse of the named insured under the Citadel policy, however, he was required by section 268(5) of the Insurance Act (" the Act") to claim benefits under that policy.

IV. ANALYSIS

My analysis in Adabi-Ghomi and Allstate Insurance Company of Canada and Wellington Insurance Company, (October 27, 1997, OIC P96-00065) applies to this case. The only distinguishing fact is that unlike Mr. Adabi-Ghomi, Mr. Addai-Agyekum was not a named insured on a personal automobile insurance policy. However, his wife was. Given the equal status given to the spouse of the named insured in section 268(5) of the Insurance Act and in the definition of "insured person" in section 2 of the Schedule, this difference is of no legal significance. Therefore, I agree with the arbitrator's decision that Citadel is the insurer responsible for paying Mr. Addai-Agyekum's accident benefits.