Neutral Citation: 1999 ONFSCDRS 110

FSCO A98-000146

BETWEEN:

RAMSARUP KOHLI

Applicant

and

STATE FARM MUTUAL INSURANCE COMPANY

Insurer

DECISION

Before:

Beth Allen

Heard:

March 29, 1999, in Toronto, Ontario

Appearances:

Kevin Doan for Mr. Kohli

Jeremy Solomon for State Farm Mutual Automobile Insurance Company

The Applicant, Ramsarup Kohli, then aged 59, was injured in an incident on April 20, 1996. He applied for accident benefits under the Schedule¹ which State Farm Mutual Insurance Company of Canada ("State Farm") refused to pay. The parties agreed before the hearing that Mr. Kohli is entitled to income replacement benefits as claimed if I find that Mr. Kohli sustained his injuries in an "accident" as defined under section 1 of the Schedule.

The issue in this hearing is:

Was Mr. Kohli involved in an accident on April 20, 1996 within the meaning of the Schedule?

Mr. Kohli was not involved in an accident within the meaning of the Schedule.

The Incident:

Mr. Kohli's account at the hearing:

Mr. Kohli testified with the assistance of an interpreter. On April 20, 1996, at about 7:00 a.m., Mr. Kohli was alone in the elevator descending to the underground garage in his apartment building. An unfamiliar man entered when the elevator door opened at the first floor lobby. The two men travelled down to the underground garage. According to Mr. Kohli, he exited the elevator first and turned left to reach the doors to the parking area. Both Mr. Kohli and the man exited these doors into the parking area, but then they went in opposite directions. The evidence is unclear as to how far Mr. Kohli's car was from the doors to the parking area. Ms. Bajinder Kohli, Mr. Kohli's daughter-in-law, was uncertain but testified that she thought the car was about 10 to 12 steps from the doors. Mr. Kohli testified that after he passed through the doors, he turned left to walk towards his car, while the other man turned right.

Mr. Kohli testified in chief that he had reached his car, taken out his key, and had inserted it in the door lock when the man he saw on the elevator approached him. He stated in cross-examination, with some hesitation, that he had "opened the lock" and "unlocked the car" when the man approached him. According to Mr. Kohli, the man showed him a piece of paper as he stood next to him beside the driver's side of the car. Mr. Kohli testified that at this point he withdrew the key from the lock and put it in his pocket. He indicated that he took his glasses from his pocket to read the paper when the man struck him on his right forehead with a glass bottle. Mr. Kohli stated that he fell to the ground, "passed out" and when he "came to" he was lying against the rear driver's side of the car and the man had his hands on his throat. Mr. Kohli testified that he cried out for help and when no one responded he gave the man the car key. The assailant then drove off in Mr. Kohli's car exiting through the automatic garage door. Mr. Kohli testified that he pursued the assailant on foot through the automatic door.

Mr. Kohli's description at the hearing of what happened during this incident diverges in important ways from prior statements he made. There were no other witnesses to the incident. Mr. Kohli stated that he has not seen or heard of the assailant since the incident.

Prior written statements:

Mr. Kohli made a statement at his counsel's office on August 26, 1997 (almost one-and-a-half years post-accident) to Ms.Tara Drabik, a claims adjuster with State Farm, with the assistance of an interpreter. Mr. Kohli confirmed that he signed the statement. It contains a description of the incident which seems in part inconsistent with his testimony. For example, the statement reads on page one:

It happened on April 20, 1996. Time was 7 am. I was getting to go to work. I was walking toward my car when I approached my vehicle another person handed out a paper to me. And he asked can you please tell me where is this parking spot and when I bent to look at the paper. At that time he hit me hard on the right side of my head with a glass bottle. I became unconscious immediately and fell down on the floor on the ground. And when I regained consciousness I also felt I was in pain and my entire head and right shoulder were swollen and I was bleeding from my nose. I then asked him what he wanted. He said he wanted the key of the car. I took out the keys from my pocket and gave the key to him. And then he started the car and then drove it.

During cross-examination, Ms. Drabik explained that to elicit the latter part of the statement, she asked questions that were more specifically directed at where Mr. Kohli was in relation to the car when the assault occurred. She testified that she had the definition of "accident" as defined by the Schedule in mind when she asked these questions. The latter part of the statement states:

When I went to the main floor he started following me from that point. At that time I started going towards my car and he went in the other direction. I had hardly made it to my car then he appeared quickly. He was very close to me, the man...I have difficulty telling in feet. I just turned my head and noticed him. I had the key, you could say one foot. I was putting the key in the lock. At that time I had the key in my hand and I was just going to insert the key in the lock when he appeared.

During cross-examination about this statement, Mr. Kohli testified that since the incident he has suffered from memory problems. State Farm called Mr. Kohli's attention to a report dated December 9, 1996 (about six months post-accident) made by Dr. Cashman at Wellesley Hospital, a psychiatrist who examined Mr. Kohli in December 1996 at the request of his employer's disability carrier. In the report, Dr. Cashman states that Mr. Kohli’s daughter (who accompanied Mr. Kohli to the appointment) told him that her father does not remember anything of the assault. Mr. Kohli recalled the appointment with Dr. Cashman and conceded that his daughter had made this statement and that he had no memory of the assault at that time.

Mr. Kohli's testimony about the statement to State Farm was rather confusing. He stated that he has very poor recall of the incident as well as problems remembering the contents of and circumstances around the generation of the statement. But he insisted that what is described in the statement is "not what happened... because he had reached the car and inserted the key and that's when he attacked me." Mr. Kohli did not respond to State Farm's questions about the discrepancy with respect to the detail about the incident in his testimony and his admitted memory problems.

State Farm also pointed to the application Mr. Kohli made to the Criminal Injuries Compensation Board (the CICB) for compensation for the injuries he sustained as a result of the assault on April 20, 1996. Mr. Kohli testified under oath at the CICB hearing held on September 10, 1998. The CICB's recitation of the incident in its October 21, 1998 decision states:

At approximately 7:00 a.m. on the said date, the Applicant entered the parking garage and was proceeding to his car when he was assaulted by an unknown assailant. [emphasis added]

When asked about the discrepancy between the CICB's account of the incident (that he was proceeding to his car) and his testimony (that he had reached his car and inserted the key), Mr. Kohli stated that he had testified to the CICB that he "went up to the car and opened it and that's when the assault occurred." Under cross-examination about this discrepancy, Mr. Kohli's testimony was that CICB made a mistake in its account of the incident.

State Farm further pointed to Mr. Kohli's Application for Accident Benefits² where under Part 3, entitled "Accident Details", there is a "brief description of the accident." Mr. Kohli testified that an interpreter translated this statement which states:

I went to the underground parking lot to get my car & go to work when a man approached me, & hit me on the head with a bottle. I lost consciousness. He tired [sic] to stragle [sic]. I asked him "what do you want" & he replied that he wanted the car keys. 14 days later police returned the car to me, perpetrator not yet caught."

State Farm questioned Mr. Kohli as to why this statement says nothing about "approaching" the car or "opening" the car. Mr. Kohli's evidence was that he told the interviewer that "I was at the car when I was attacked." When asked why this was not in the statement, Mr. Kohli testified that "they didn't ask me this."

State Farm further questioned Mr. Kohli about a statement he gave to the police.³ This description of the incident states in part:

As the victim approached his veh [sic], the suspect demanded the victim's keys and the victim complied and gave the suspect his keys, at which time the suspect punched the victim repeatedly in his face and hit him over the head with a glass bottle, at which time suspect jumped into the veh and drove away. [emphasis added]

Again, State Farm confronted Mr. Kohli with the discrepancy between his testimony and his statement to the police. Mr. Kohli testified that he did not report to the police that he was still walking to the car when he was assaulted, but rather told them that he had "reached" the car.

State Farm also questioned Mr. Kohli about statements he made (with the assistance of an interpreter) to the CICB on his Application for Compensation dated May 16, 1997 and to Standard Life Assurance Company, stamped as received by Standard Life on May 28, 1996. Neither of these statements indicate where Mr. Kohli was in relation to his car when he was assaulted. Regarding the CICB application, State Farm asked Mr. Kohli why he did not indicate that he had reached or unlocked his car. Mr. Kohli responded, "I don't know what the person recording it wrote. I can't help that."

In cross-examination, State Farm asked Mr. Kohli the general question whether he gave as accurate details as he could in his statements to the police, the insurance company and the CICB. Mr. Kohli’s response to this question was also confusing. He stated that he answered all questions truthfully but he was injured and bleeding through his nose.

Factual findings and credibility:

I have concerns about Mr. Kohli's accuracy as a historian in this case. The evidence is unclear as to the particulars of the incident that caused Mr. Kohli's injury.

Mr. Kohli is the only witness to the incident and hence the sole source of information about where he was and what he was doing when he was assaulted. Mr. Kohli applied to State Farm for accident benefits (on July 14, 1997⁴) and made his first statement about the incident to State Farm (on August 26, 1997) more than a year post-accident. However, he conceded in testimony that in December 1996, he had (through his daughter) told Dr. Cashman, a psychiatrist retained by his employer's disability carrier, that "[h]e doesn't remember anything of the assault." Moreover, Mr. Kohli admitted at the hearing that he has continued to have memory problems since the assault and stated that he does not remember describing the accident as recorded in the prior statements. Mr. Kohli also confused the evidence further during cross-examination about the truthfulness of his statement to State Farm. Under repeated questioning on this point Mr. Kohli stated, "Whatever I said was correct." I find that the description of the incident in this statement although itself not entirely clear, presents a somewhat different picture of his circumstances at the time of the assault than he presented at the hearing.

I find that the essential difference between Mr. Kohli's description of the incident in his prior statements and his description in his testimony, rests in his account of his physical proximity and connection to his car during the assault.

The statement Mr. Kohli gave to State Farm contains inconsistencies. In the earlier part of the statement Mr. Kohli seems to indicate that the key was in his pocket when he was attacked.

However, later on in the statement, when specifically questioned by the adjuster about the key and his proximity to the car, Mr. Kohli stated that he had hardly made it to his car and he was about to insert the key when the man appeared. This also seems inconsistent with earlier references in this statement about approaching the car at the time of the attack. However, I find on balance, that this statement conveys that Mr. Kohli had not reached the car when he was attacked. And, unlike his testimony, this statement mentions nothing about Mr. Kohli lying against the car during the assault.

Not until the hearing, nearly three years post-accident, did Mr. Kohli attempt to establish a closer connection to his car at the time of the assault. He testified that he had actually "reached" his car and had "inserted the key" or "opened the lock" when the assault occurred and was "lying against the rear driver's side" of the car when the assailant was choking him.

For a number of reasons, I do not accept as reliable Mr. Kohli's description of the incident in his testimony. The fact that nearly three years after the accident, he was able to provide a rather detailed account of the incident casts some doubt on his evidence, especially considering that he has admitted to memory problems since the assault. Mr. Kohli failed to explain the discrepancies in the evidence in a satisfactory manner. His testimony was at times confusing, incoherent and inconsistent when he attempted to address the discrepancies. Throughout his oral evidence, when answering many questions, he appeared to recant previous responses by saying "I don't remember."

I conclude, that if any account of the incident is to be accepted, I should accept the account provided closest in time to the incident, since it is likely to be more reliable than an account given later. Mr. Kohli initially stated that he was "approaching" the car when he was attacked. In arriving at my findings, I am mindful that Mr. Kohli, the only source of evidence about the incident, repeatedly denied under oath at the hearing that he was approaching his car when he was attacked. However, considering the totality of the evidence, I find more likely than not that Mr. Kohli was approaching his car when he was attacked. In spite of Mr. Kohli's denials at the hearing, the statements he made before the hearing either state or suggest that he was walking towards or approaching his car when he was assaulted. I therefore accept this as a fact.

Case law has established that a victim's physical proximity or connection to a vehicle at the time of an assault can be critical to establishing the necessary causal connection between an injury-causing incident and the use or operation of an automobile. It is unclear in Mr. Kohli's case how close to his car he had come when he was assaulted. From the evidence, I am unable to ascertain his precise distance from the car. However, I think I can reasonably conclude that Mr. Kohli was relatively close to his car just before and during the assault.

I arrive at this conclusion in part from inferences about the assailant's intent which I draw from the context of the incident. In their submissions, the parties advanced essentially the same inferences in respect to the assailant's intent, which I accept as reasonable. The Supreme Court of Canada in Amos⁵ also employed this approach in dealing with evidentiary gaps as to an assailant's intent. It held that to establish the necessary causal link, it is not mandatory to prove an assailant's intent. The Court stated: "It is always open to the courts to draw reasonable inferences from the facts."

In Mr. Kohli's case, I believe it can be reasonably inferred from the facts that the assailant had the intent on the morning of April 20, 1996 to steal a car. When the elevator door opened at the apartment lobby and he saw Mr. Kohli alone and heading for the basement garage, he chose him as his victim. When the assailant left the elevator, he (the assailant) walked in the opposite direction from Mr. Kohli to give him (Mr. Kohli) an opportunity to walk toward his car, thereby identifying for the assailant the car to be stolen. Once Mr. Kohli arrived close enough to his car, the assailant walked back toward Mr. Kohli, showed him a note to distract him, assaulted him, obtained the car key and stole his car. I therefore infer from the factual context, that at the time of the assault, Mr. Kohli must have been close enough to his car for the assailant to know which car was his.

ANALYSIS AND REASONS FOR DECISION:

Court and Commission decisions considering the scope of statutory accident benefit recovery have examined the relationship between the definition of "accident" in the Schedule and what has been held to be the broader definition in the Insurance Act.⁶ Section 268 of the Act provided that motor vehicle liability policies shall provide statutory accident benefits in accordance with the Schedule. Section 266 of the Act excluded actions for damages for injuries falling below the threshold in respect of loss or damage "arising directly or indirectly from the use or operation of an automobile." Whereas section 1 of the Schedule defines an accident as follows:

"accident" means an incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury...

The Supreme Court of Canada in the Amos and Insurance Corp. of British Columbia case⁷ held that the phrase "arising out of," which is not used in the Act or Schedule, is broader than "caused by." In Amos, an assailant shot a driver while he was trying to drive away from a group of men who blocked his way and shattered the window on the driver’s side of his van. The definition in the British Columbia legislation requires that the injury be "caused by an accident that arises out of the ownership, use or operation of a vehicle..." The Ontario Court of Appeal in the Alchimowicz and Continental Insurance Company of Canada case,⁸ considering the interaction between the definitions in the Act and Schedule, held that since the legislature established different tests for the exclusion of court actions and the determination of statutory accident benefits, the narrower definition in the Schedule is applicable to accident benefit claims.

The Supreme Court in Amos applied a two-part test in determining the scope of British Columbia's accident benefits regulation. The first step or the "purpose test" asks whether the accident resulted from the ordinary and well-known activities to which automobiles are put; the second step, or the "causation test" inquires whether there is some nexus or causal relationship between the injuries and the ownership, use or operation of the vehicle or whether the connection between the injuries and the ownership, use or operation of the vehicle is merely incidental or fortuitous. The Court established that while proximate cause need not be established, the use or operation of an automobile must have in some manner contributed or added to the injury.

In his submissions, Mr. Kohli focused on the evidence that he was approaching his car when he was attacked. He presented alternative arguments. He made his first argument from the perspective of his use of the car and the second from the perspective of the assailant's use of the car.

Mr. Kohli submitted that the April 20, 1996 incident meets the Schedule’s definition of an accident as having been directly or indirectly caused by the use of an automobile.

Mr. Kohli argued that he "was using his car" when the assailant assaulted and injured him. As I understand Mr. Kohli’s position, he entered the garage that morning with the intention of using his car to go to work, which, in his submission, is an ordinary use of a car. The assault occurred while he was standing close to the car and as such, the use of the car contributed to Mr. Kohli’s injury. He further argued that the use of a car does not begin with starting the engine. In support of this position, he cited the arbitration decision Gligoric⁹ where the Arbitrator found that the insured was involved in an accident under circumstances where, at an unascertained distance from his car, the driver fell on ice with his key in his outstretched hand while he was approaching the driver’s door of his car and was about to insert the key into the lock. The Arbitrator held that the insured’s "attempt" to unlock his car door is an ordinary use and well-known activity to which an automobile can be put.

Mr. Kohli submitted that the facts reveal that he was close to his car when he was assaulted. He argued that although it would be helpful, it is not crucial that I find that he inserted the key or opened the lock of his car in order for me to conclude that he "used" the car as required by the definition.

Mr. Kohli argued that the facts of the Amos case and a Florida case, Novak v. Government Employees Insurance Company,¹⁰ are akin to his situation. In Novak, the driver was in her car, about to pull away when a stranger approached her and asked for a ride. When she refused, the stranger shot her, pulled her from her car and drove away in her car. According to Mr. Kohli, the assault in his case, like the shootings in Amos and Novak, was effected during attempts to gain control of the vehicle and as such arose out the use of his car. According to Mr. Kohli, there is a sufficient causal relationship between the use of his car and his injury, since he, like the victims in the cited cases, was assaulted when the assailant was attempting to gain control of his car. Mr. Kohli argued that the assailant took control very quickly before he could resist and submitted that resistance or a struggle for control of the car is not necessary for an assault to fall within the ambit of Amos.

According to Mr. Kohli’s second argument, the assailant’s taking possession of the car and driving it away is an ordinary use of an automobile. Mr. Kohli further submitted that the assailant assaulted and injured Mr. Kohli in order to take control of the car and drive it away. According to this argument, his injury is sufficiently causally connected to the assailant’s use and operation of the vehicle.

State Farm argued that Mr. Kohli was not in an automobile accident on May 20, 1996. He was the victim of a criminal assault and automobile theft in an underground parking garage. State Farm submitted that the assailant formed a criminal intent to steal a car when he entered Mr. Kohli’s apartment building and effected his intent by assaulting Mr. Kohli while he was walking to his car. In State Farm's submission, the words "caused directly or indirectly" are not broad enough to cover an incident where a victim sustains an injury in an assault while approaching his car.

State Farm relied on the Director's Delegate's decisions in the Hanlon, ¹¹Overley¹² and Lenti¹³cases which found that the causal connections between the incidents in those cases and the insureds injuries were not sufficient to be covered by the Schedule. (The facts of these cases are discussed below). State Farm argued that the incident which caused Mr. Kohli's injuries was even more remotely connected to the use of an automobile than the incidents in the cited cases, since Mr. Kohli had not even reached his car when he was injured.

In coming to a decision in this case, I am faced with the question of how far one can reasonably stretch the words "by the use or operation of an automobile" to make it fit the Schedule's definition of an accident. For the following reasons, I conclude that the incident in question does not fall within the scope of the definition of "accident" under the Schedule.

I found that Mr. Kohli had not reached his car, although he was close to it, when he was assaulted. It is not disputed that he intended or planned to use his car when he went to the underground garage that morning. The assailant who approached Mr. Kohli in the garage also planned to use the car. However, neither Mr. Kohli nor the assailant had actually used or operated the car before or at the time of the assault. When the assault occurred, the use or operation of the car remained only at the level of an intention in the minds of both Mr. Kohli and the assailant. I find that the employment of the terms "use" and "operation" in the definition requires the vehicle to have been more than the object of an intention or merely present during the incident. To my mind, these words contemplate a more functional or instrumental role for the vehicle in the injury-causing incident. The words "directly or indirectly" modify "caused by" and not "use" or "operation."

The terms "use" and "operation" are not defined in the legislation. Dictionary definitions of these words contain elements of "functionality" or "instrumentality." Black's Law Dictionary defines "use" as:

Act of employing everything, or state of being employed; application, as the use of a pen or his machines are in use...To put or bring into action or service; to employ for or apply to a given purpose...To avail oneself of; employ; to utilize; to carry out a purpose or action by means of; to put into action or service, especially to attain an end.¹⁴

Black’s defines "operation" as:

Exertion of power; the process of operating or mode of action; an effect brought about in accordance with a definite plan; action; activity.¹⁵

The Dictionary of Canadian Law defines "use" as:

Utilization or employment of, with some aim or purpose...actual carrying into action, operation or effect...The working, manipulation operation, handling or employment of the vehicle, not just merely making use of it by riding in it...¹⁶

"Operation" is defined in the Dictionary of Canadian Law as:

...the physical acts or omissions of the operator of a vehicle while it is being driven.¹⁷

In Mr. Kohli's circumstances, the assault occurred in the presence of his car; but the facts reveal that the car did not instrumentally contribute to his injuries. It might be said that his injuries were directly or indirectly because of his car or stemmed from the presence of his car. In my view, however, the facts do not permit a finding that the injuries were caused directly or indirectly by its use or operation. I think the Director's Delegate's reasoning in Ekunah and Simcoe & Erie¹⁸is applicable to the facts of this case. She concluded that it is not enough that the automobile was the location of the incident. It must have caused the accident and not have merely been involved in some "peripheral or incidental way."

Looking at the Hanlon, Overley and Lenti cases where the Director's Delegate found the incidents did not constitute accidents, I conclude that Mr. Kohli’s incident is more remotely connected to the use or operation of an automobile than the incidents in these cases. In Hanlon, the insured and another driver collided on a highway. The drivers met each other on the roadside and began arguing outside their vehicles. The other driver struck the insured with a portable car phone, injuring him. In Overley, the insured was a passenger in a car in a parking lot when the driver of the car drove in reverse and struck another vehicle. The driver of the other car opened the passenger door where the insured was seated and struck him. In Lenti the insured was injured when a bomb placed under the driver’s seat of his car exploded. The bomb had been detonated by a remote device. Unlike Mr. Kohli’s situation, the victims in the cited cases were injured under circumstances where an automobile had just been used or was in the process of being used. The same can be said of the Novak case where a Florida court found an accident had occurred where the victim was using her car when the assailant shot her and stole her car.

The Amos case can be similarly distinguished on its facts. I find that Mr. Kohli’s incident falls beyond the ambit of the broader definition in Amos, since in that case the Court considered the scope of the words "arising out of." The victim in Amos was operating the vehicle when he was shot and the injury occurred when the victim tried to resist the intrusion of the assailant. Unlike Mr. Kohli’s circumstances, the vehicle in Amos played an instrumental part in the assault since the victim was using the car to try to escape the assailant. The Court found in these circumstances that there was sufficient connection to the use of an automobile to satisfy the "arising out of" test.

Regarding Mr. Kohli’s alternative argument, I disagree that his injury is sufficiently causally connected to the assailant’s use and operation of the vehicle. The assailant used the car only after he injured Mr. Kohli. I do not accept Mr. Kohli’s submission that the assailant’s use of the car subsequent to the injury, brings Mr. Kohli’s incident within the scope of the definition, particularly under circumstances where the vehicle was not instrumental in causing the injuries.

The facts in this case compel me to conclude that Mr. Kohli was not a victim of an automobile accident in the underground garage of his apartment building, but rather the unfortunate victim of a crime of violence. The CICB found this to be the case when it awarded Mr. Kohli compensation for the harm he sustained that day. In my opinion, this sort of incident is not meant to be covered by automobile insurance. I therefore conclude that a criminal assault which does not take place within the context of an ordinary and well-known use of an automobile is not a risk sought to be protected against by a motor vehicle liability policy. I think the caution expressed in Alchimowicz is applicable here: "As liberally as one may choose to interpret legislation which provides benefits to persons who are injured, it must be remembered that this is automobile legislation."

In the result, I find that Mr. Kohli was not injured in an automobile accident on April 20, 1996.

EXPENSES:

The parties made no submissions as to expenses. If the parties cannot settle this matter between themselves, I may be spoken to.

June 16, 1999

Beth Allen Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 110

FSCO A98-000146

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

RAMSARUP KOHLI

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The arbitration is dismissed as Mr. Kohli was not involved in an accident within the meaning of section 1 of the Schedule.