Financial Services Commission

Commission des services financiers de l’Ontario

Neutral Citation: 1999 ONFSCDRS 234

Appeal P99-00022

OFFICE OF THE DIRECTOR OF ARBITRATIONS

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Appellant

and

ABDILLAHI JAMA MOHAMED

Respondent

and

AMERICAN HOME ASSURANCE COMPANY

Intervenor

Before:

David R. Draper, Director's Delegate

Representatives:

Casey Van Moorlehem (for State Farm)

Ric Fleury and Brian Leila (for Mr. Mohamed)

Chris T. Blom (for American Home)

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.1.8, as amended, it is ordered that:

The appeal is allowed and the arbitration order, dated March 25, 1999, is rescinded. The following order is substituted:

Mr. Mohamed is not entitled to proceed to arbitration against State Farm Mutual Automobile Insurance Company because it was not the first insurer to receive a completed application for accident benefits.

No appeal expenses are payable.

December 1, 1999

David R. Draper Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This is an appeal by State Farm Mutual Automobile Insurance Company ("State Farm") from a preliminary arbitration decision dated March 25, 1999. State Farm contends that the arbitrator erred in refusing to dismiss Mr. Mohamed's claim for rehabilitation benefits. In its submission, Mr. Mohamed's initial application went to American Home Assurance Company ("American Home"), which refused his claim and did not take any steps under O.Reg. 283/95, Disputes Between Insurers ("the Priorttees Regulation") to contest its status as the priority insurer. Consequently, State Farm contends that Mr. Mohamed is precluded from proceeding against any insurer other than American Home.

II. PRELIMINARY ISSUE

As a general rule, appeals from preliminary or interim decisions are not allowed. Rule 46.2 of the Dispute Resolution Practice Code ("the Practice Code") states that a party may not appeal a preliminary or interim order until all of the issues in dispute have been finally decided, unless the Director (or her delegate) orders otherwise. However, based on written submissions, I was persuaded that the appeal raised serious legal issues that should be resolved before the arbitration went ahead. Therefore, on May 19, 1999, I ordered that the appeal could proceed.

On August 9, 1999, I heard oral submissions based on the record. Mr. Van Moorlehem represented State Farm. Mr. Mohamed was represented by Mr. Fleury, assisted by Mr. Brian Leila—both from Target Rehab Centre ("Target Rehab"), the company that provided the rehabilitation services in issue.

For reasons set out in my letter of August 12, 1999, I concluded that State Farm's arguments had not been adequately addressed in the arbitration hearing. In keeping with the goal of providing the quickest, most just and least expensive resolution of the dispute,¹ I ordered that the appeal would proceed by way of a hearing at the appeal level, with notice to American Home, on the following question:

Does the operation of s.268 of the Insurance Act and O.Reg. 283/95, Disputes Between Insurers, prevent Abdillahi Jama Mohamed from proceeding to an arbitration hearing on his claim against State Farm Mutual Automobile Insurance?

Because the decision to hold a hearing involved significant questions about the interaction between the Priorities Regulation and the dispute resolution process, the reasons will be repeated here. Also, I heard nothing in the subsequent hearing that changed my analysis.

Accident benefits were introduced for a number of reasons, but one was to address perceived weaknesses in the traditional tort system. In tort, injured persons were often left without compensation for long periods while questions of liability were resolved. By relying more heavily on compensation through statutory accident benefits, the legislation emphasized the prompt payment of benefits to meet the injured person's immediate needs, regardless of fault.

The legislation also makes accident benefits available whether or not the injured person has automobile insurance. In other words, the injured person can expect some insurer, or the Motor Vehicle Accident Claims Fund, to respond to his or her claim. This is done through the priority rules in s.268 of the Insurance Act ("the Act"), clarified by the definition of "insured person" in s.1 of the SABS-1994,² and the specific rules about company automobiles and rental automobiles in s.91 of the SABS-1994.

However, this system did not solve the problem of delayed payments. If the insurers disagreed about which one had priority, the insured person could be left waiting for benefits until that dispute was resolved. The Priorities Regulation was meant to address this problem.³ As the then Commissioner of Insurance explained, the "new Regulation provides protection to injured accident victims who may be entitled to benefits and are caught in the middle of these disputes."⁴

Under the Priorities Regulation, disputes about insurer priority were moved from the dispute resolution system to private arbitration:

All disputes as to which insurer is required to pay benefits under section 268 of the Act shall be settled in accordance with this regulation.
If the insurers cannot agree as to who is required to pay benefits or if the insured person disagrees with an agreement among insurers that an insurer other than the insurer selected by the insured person should pay the benefits, the dispute shall be resolved through an arbitration under the Arbitrations Act, 1991.

Payment pending the resolution of any priorities dispute was addressed by making "the first insurer that receives a completed application for benefits" responsible for paying:

The first insurer that receives a completed application for benefits is responsible for paying benefits to an insured person pending the resolution of any dispute as to which insurer is required to pay benefits under section 268 of the Act.

If that insurer believes it is not the priority insurer under s.268 of the Act, it must give notice of its objection to every other insurer it claims is required to pay benefits and to the insured person.⁵ This notice must be given within 90 days of receiving the application for benefits, or longer if 90 days was not sufficient time to determine that another insurer might be responsible.⁶ The insured person is given a chance to object to the transfer of the claim to another insurer.⁷ If the insured person objects, or the insurers cannot agree which company is responsible, the dispute is resolved by an arbitration under the Arbitrations Act, 1991, initiated within one year of the insurer's initial notice of objection.⁸

Mr. Mohamed's claim is based on an automobile accident that occurred on September 8, 1996. He was driving a rented van insured by American Home. At the time, his spouse was the named insured under an automobile policy issued by State Farm. Mr. Mohamed's first application for accident benefits went to American Home. He signed it on September 13, 1996, just five days after the accident, and his lawyers sent it to American Home about two weeks later.⁹ The disputed question is whether Mr. Mohamed contacted State Farm first, but was told to go to American Home. The parties referred to this as the claims deflection issue.

In his application for accident benefits, Mr. Mohamed claimed income replacement benefits ("IRBs") and unspecified accident-related expenses. American Home responded with an Explanation of Assessment by Insurance Company, dated September 27, 1996, refusing to pay benefits because: "Insufficient information on application to calculate benefits. Not enough employment information provided."¹⁰

Mr. Basil Zahed, the independent adjuster retained by American Home, prepared a second Explanation of Assessment by Insurance Company, dated October 24, 1996.¹¹ It states that IRBs are refused, with the following explanation: "Injuries outlined are not consistent with accident details. Primary auto insurer may be valid through spouse." Despite the reference to another insurer, American Home did not take any steps under the Priorities Regulation to contest its responsibility as the priority insurer.

Mr. Mohamed did not challenge Home Assurance's decision by applying for mediation. However, he continued to receive treatment at Target Rehab from about September 30, 1996 to December 23, 1996. This is the subject of his current claim, totalling $5,255, plus interest.

In June 1997, Mr. Ric Fleury, the Manager of Target Rehab, contacted State Farm, claiming it was responsible for paying Mr. Mohamed's accident benefits.¹² At the end of November 1997, almost a year after the treatment at Target Rehab ended, Mr. Mohamed completed another application, this one to State Farm.¹³ However, it was on the wrong form. Approximately five months later, in May 1998, he submitted an undated, unsigned application to State Farm,¹⁴ followed by an application that is dated and signed,¹⁵ both in the proper form. The final application includes the claim for rehabilitation expenses at Target Rehab, although the amount is not indicated.

When State Farm did not pay any benefits, Mr. Mohamed applied for mediation, naming Mr. Fleury as his representative. The Report of Mediator, dated November 6, 1998, shows that State Farm challenged Mr. Mohamed's right to pursue accident benefits from an insurer other than American Home:

As a preliminary issue, the insurer maintained that the insured had made application for statutory accident benefits against another insurer first and that pursuant to the provisions of regulation 283/95 Disputes Between Insurers, the insured had no jurisdiction to proceed to mediation. The insurer also questioned the standing that the insured had to apply for benefits with State Farm given section 268 of the Insurance Act and Section 138 of the Courts of Justice Act with respect to avoiding multiplicity of proceedings. . . .

In early December 1998, Mr. Mohamed applied for arbitration with respect to State Farm's refusal to pay benefits. The only claims are for his rehabilitation expenses at Target Rehab, interest and arbitration expenses. In addition, he argued that State Farm should be required to pay a special award under s.282(10) of the Act In its Response, State Farm takes the position that because Mr. Mohamed applied first to American Home, which denied his claim on the merits, he has no right to proceed against another insurer.

At State Farm's request, a preliminary issue hearing was scheduled. Unfortunately, the issue was framed more narrowly than State Farm suggested. The Acting Coordinator/Registrar interpreted its position as involving two issues:

Whether State Farm or American Home is the priority insurer under s.268 of the Insurance Act; and
Whether the applicant's claim can be struck as an abuse of process, frivolous, and vexatious proceeding, for failure to comply with section 138 of the Courts of Justice Act prohibiting a multiplicity of legal proceedings.¹⁶

State Farm was advised that the first issue must be dealt with through private arbitration under the Priorities Regulation. The second issue was scheduled for a preliminary hearing under Rule 65 of the Dispute Resolution Practice Code. In the preliminary arbitration decision, the arbitrator essentially repeats the second issue as the issue before her.

The hearing proceeded on the basis of 12 exhibits and one witness — Mr. Basil Zahed, the independent adjuster retained by American Home. Mr. Mohamed did not testify. The arbitrator refused to dismiss Mr. Mohamed's claim against State Farm, providing the following explanation:

I find that there is no legal basis for State Farm's position that once American Home denied Mr. Mohamed's claim that he was barred from pursuing his claim against State Farm. I accept Mr. Mohamed's submission that he applied to State Farm because he believed State Farm was the correct insurer. If under the priority rules State Farm turns out not to be the primary insurer, then State Farm has recourse against the proper insurer pursuant to Ontario Regulation 283/95 - Disputes Between Insurers.

I also find that there is no legal basis to support State Farm's position that because Mr. Mohamed applied to two insurers for benefits, but only proceeded to arbitration against one of them, that this amounted to a duplicity of proceedings and an abuse of process. Applying for accident benefits is not the same as commencing a legal proceeding. I received no probative evidence that Mr. Mohamed had engaged in a duplicity of proceedings.

With respect, this does not answer State Farm's argument. The problem, in my view, stems from way in which the issue was framed. The question is not whether Mr. Mohamed acted unreasonably, but whether State Farm is required to pay his benefits.

State Farm accepts that priority disputes are now decided through private arbitration under the Priorities Regulation. Although it claims that American Home is the priority insurer under s.268 of the Act, that is not the argument being raised here.¹⁷ State Farm contends that it is not required to pay benefits because it was not "the first insurer to receive a completed application." That was American Home. Further, American Home rejected the claim, without taking any steps under the Priorities Regulation to have another insurer named as the priority insurer. Nor did Mr. Mohamed challenge American Home's decision by applying for mediation, as he could have done. State Farm contends that in these circumstances, Mr. Mohamed must proceed against American Home. He is not entitled to choose a different insurer, hoping that it will view his claim more favourably.

It is ironic that legislation meant to simplify matters for insured persons has created such confusion. In my opinion, however, the following observations can be made:

The Priorities Regulation creates a distinction between "the first insurer to receive a completed application for benefits" ("the first insurer") and the insurer with priority under s.268 of the Act ("the priority insurer").
The first insurer must pay accident benefits under the SABS-1994 even if it believes it is not the priority insurer.
To contest its obligation to continue paying benefits, the first insurer must give written notice, according to the procedures established in the Prior/ties Regulation, that it is not the priority insurer. If it does not give notice, it cannot argue that another insurer is the priority insurer, subject to getting an extension under s.4 of the Priorities Regulation.
The first insurer is only obliged to pay benefits if the insured person has established his or her entitlement. If it refuses any part of the claim, however, the insured person has a right under the Act to contest that decision through the dispute resolution system. It would defeat the purpose of the Priorities Regulation if that process had to wait for the outcome of the priorities dispute.
The first insurer, or any other insurer, cannot defend a claim in the dispute resolution system by arguing that it is not the priority insurer. The Priorities Regulation has moved that jurisdiction to arbitrators acting under the Arbitrations Act, 1991.

The question raised in this appeal is whether an insurance company being pursued in the dispute resolution system can respond by arguing that it is was not the first insurer to receive a completed application. This argument has at least two variations. The insurer might claim, as State Farm does here, that another insurer received the first completed application. Alternatively, it might argue that it is not an "insurer" and, therefore, has no obligation to pay benefits under the Priorities Regulation, or any other legislation. Examples of this argument are found in Mariona and Canadian General Insurance Company, (FSCO A96-000717, September 25, 1998) and Allstate Insurance Co. v. Brown et a! (1998), 1998 CanLII 18877 (ON CTGD), 40 O.R. (3d) 610 (Div.Ct.).¹⁸

The Divisional Court decision in Brown is of particular interest. In that case, the insured person, Mr. Brown, applied first to Allstate. He then applied to two other insurance companies and the Motor Vehicle Accident Claims Fund. Allstate refused to pay benefits on the basis that its policy was not in effect at the time of the accident. In other words, it was not an insurer and, therefore, could not be "the first insurer that receives a completed application," within the meaning of the Priorities Regulation. Mr. Brown applied for mediation with each insurer and MVAC, but only the mediation with Allstate was allowed to proceed. When the dispute was not resolved, Mr. Brown applied for arbitration, asking for an interim order that Allstate pay benefits.

The arbitrator found that Mr. Brown had not randomly applied to an insurance company with no connection to the accident. On the contrary, he claimed that the Allstate policy was in effect, and Allstate acknowledged that it provided coverage up to four months before the accident. In the arbitrator's view, these facts created, prima facie, a sufficient connection between the parties to create an obligation to respond to the claim. While the priorities dispute would need to be decided under the Priorities Regulation, she ordered Allstate to pay interim benefits.

On judicial review, the Divisional Court (2-1) upheld the decision, concluding that the arbitrator had authority to order Allstate to pay interim benefits. Although the issue before me is different, the Brown decision is important for two reasons. First, it holds that an insurer can argue before an arbitrator that it is not subject to arbitration because it was not the first insurer to receive a completed application. Second, the Court suggests that this issue should be decided on notice to any other insurance companies that might be affected by the outcome.

At page 622, the majority decision, written by Justice Corbin, includes the following:

. . . although the arbitrator had jurisdiction to determine the preliminary issue of whether Allstate was an "insurer" under the Act, any such determination would, in my view, be required on notice to the other three insurers.

Similarly, Justice O Leary states as follows in his dissenting judgment:

In this case where each of the four parties alleges it does not provide coverage it is essential that all four parties be included in the court or arbitration proceedings to determine whether any of them provided coverage — i.e., is an "insurer". Economy of time and fairness to the parties in such a case dictate that all should participate in one proceeding. [p.628]

It was incumbent then on the arbitrator to inquire into and determine on the evidence the parties might produce whether Mark Brown was covered by Allstate at the time of his injury, before making any order that Allstate pay benefits. [p.629]

It would appear then that while disputes between insurers as to which is required to pay benefits under s.268 of the Act are to be settled in accordance with O.Reg. 283/95 — that is to say by an arbitrator under the Arbitrations Act, 1991, S.O. 1991, c.17 as provided for by O.Reg. 283/95 — the arbitrator appointed by the Commission to hear Mark Brown's application had authority and was bound to determine whether Mark Brown was an "insured" and whether Allstate was an "insurer". [p.630]

For these reasons, I ordered that a hearing be scheduled, on notice to American Home, to decide whether Mr. Mohamed is entitled to proceed to arbitration against State Farm. The parties were invited to call evidence on the sequence and nature of Mr. Mohamed's contacts with the two insurers, and to make submissions on their legal significance. My letter made it clear that any references to the facts and law in my preliminary decision could be revisited in this hearing.

III. PRE-HEARING ORDERS

Before the hearing started, I made the following orders:

American Home was allowed to intervene on the following terms: its counsel can lead evidence from Mr. Zahed, the independent adjuster retained by American Home, cross-examine the other witnesses, and make submissions.
Despite State Farm's objections, Mr. and Mrs. Mohamed were permitted to testify by telephone from their home in Vancouver. It was agreed that a representative from State Farm could be present when they testified.
Mr. Fleury was not permitted to act as Mr. Mohamed's representative and also testify. However, Mr. Leila was allowed to act as representative as long as Mr. Mohamed provided an appropriate authorization.
As requested on behalf of Mr. Mohamed, State Farm was to provide the identity of an employee named "Maureena."

IV. THE HEARING

At the hearing held on November 18, 1999, the following were marked as exhibits:

Exhibit 1 - Document Brief prepared by Mr. Van Moorlehem.

Exhibit 2 - Printout of computer records from State Farm (6 pages).

Exhibit 3 - Explanation of Assessment by Insurance Company, dated September 27, 1996.

The witnesses were:

Mr. Abdillahi Jama Mohamed (by telephone) - The insured person

Mrs. Nimo Mohamed (by telephone) - The insured person's spouse

Mr. Basil Zahed - Independent adjuster retained by American Home

Ms. Marina Lopiccolo - Staff person/sales person in the office of Ms. Catherine Gaglia, State Farm agent.

Ms. Catherine Gaglia (by telephone) - State Farm agent.

As stated above, the issue to be decided is whether the operation of s.268 of the Insurance Act and the Priorities Regulation prevents Mr. Mohamed from proceeding to arbitration against State Farm. Mr. Mohamed and American Home concede that the first completed application went to American Home. They claim, however, that the first contact was with State Farm, when Mrs. Mohamed called and spoke to someone named Cathy. In their submission, it was only because Cathy told Mrs. Mohamed to make the claim to the insurer of the rental vehicle that the application was sent to American Home, not State Farm. Relying on the arbitration and appeal decisions in Ready, Fung-Lee and Smith,¹⁹ they argue that an insurer cannot avoid its obligations by deflecting the claim to another company.

While I agree with these earlier decisions, I have doubts about applying them in the current scheme. Ready, Fung-Lee, and Smith all involved priority disputes between insurers of equal priority, giving the insured person an absolute right to choose which one to pursue. The deflection analysis, first used in Ready, simply recognizes that the insured person's application for benefits may not reflect his or her true choice of insurers.

The issue has now changed. Arbitrators can no longer decide the priority issue. The question that remains is whether the company being pursued was the first insurer to receive a completed application. The language is far more specific and, in my view, purposely so. Anything that diverts attention from the insured person's claim for benefits has the potential of delaying access to those benefits. For example, if Mr. Mohamed had challenged American Home's decision to deny benefits, it is unlikely that he would want his claim delayed by American Home's assertion that State Farm deflected the claim and, therefore, is responsible for paying benefits. In my view, the purpose of the Priorities Regulation is better achieved by requiring the first insurer to receive a completed application, namely American Home, to pay interim benefits and let it contest its obligations through private arbitration under the Priorities Regulation. Any allegations of improper conduct can be raised in that forum or through the regulatory authority of the Commission.

Even if the deflection analysis applies, however, the evidence falls far short of establishing that State Farm deflected Mr. Mohamed's claim. This accident occurred on Sunday, September 8, 1996. By Friday, September 13, 1996, Mr. Mohamed had seen a lawyer and signed an application for accident benefits directed to American Home. The question, therefore, is whether State Farm was contacted during this limited period and if so, whether this contact amounted to an application for accident benefits.

Strikingly, Mr. Mohamed's application to American Home states that the accident was not reported to any other insurance company.²⁰ He confirmed this in his testimony. When asked about contacting State Farm, Mr. Mohamed said that his wife called them after he signed the application form. He testified that he was present during his wife's conversation with Cathy and, as far as he knew, this was her first call to State Farm. On cross-examination, Mr. Van Moorlehem specifically asked Mr. Mohamed if his wife's call to State Farm was made after American Home denied benefits. He answered, "Of course. American Home said to go to our own insurance company." Mr. Blom also asked whether the call to State Farm was before or after the meeting at his lawyer's office. After a long pause, Mr. Mohamed said it was after. Although this evidence supports State Farm's position, its accuracy is questionable. On re-examination, he said that he was unsure about the sequence of events. That was my evaluation of his testimony in any event.

The only evidence of deflection came from Mrs. Mohamed. The core of her testimony was that she contacted State Farm first and spoke to someone named Cathy, who said that she should make the claim to the insurer of the rental vehicle. While I do not doubt the sincerity of Mrs. Mohamed's evidence, she was unable to provide a clear or consistent time frame. Also, it was contradicted by evidence that I found more reliable.

Mrs. Mohamed agreed that her husband was present when she first called State Farm. Her recollection was that she did not make the call on the day of the accident, although it was less than a month later. According to Mrs. Mohamed, she called American Home after speaking to Cathy and spoke to a man with a foreign-sounding last name. On cross-examination by Mr. Blom, she recognized Mr. Zahed's name, agreeing that he was the person she spoke with. Mrs. Mohamed testified that after this conversation, she called Cathy again. Cathy told her that American Home had no right to refuse the claim and that she would look into it.

Mr. Zahed's evidence helps with the timing. He testified that he first became aware of Mr. Mohamed's claim on September 24, 1996, when he received the application through the corporate office. I accept this date as accurate. Therefore, Mr. Zahed's involvement had nothing to do with the decision of Mr. Mohamed and his lawyer to apply to American Home.

The real issue is Mrs. Mohamed's initial conversation with Cathy. The parties disagree about whether there was such a call, but the timing is also critical. State Farm could not have deflected a claim that Mr. Mohamed and his lawyer had already decided to direct to American Home.

Therefore, any conversation between Mrs. Mohamed and Cathy is of little consequence unless it took place between September 8 and 13, 1996.

The most likely Cathy is Ms. Cathy Gaglia, a State Farm agent. However, the possibility that Mrs. Mohamed spoke with Ms. Gaglia during the critical period is seriously undermined by State Farm's records and the testimony of Ms. Gaglia and her assistant, Ms. Lopiccolo. The records suggest that State Farm's first notice of this claim was in June 1997, when Mr. Fleury spoke to Ms. Lopiccolo. More importantly, Ms. Gaglia and Ms. Lopiccolo testified that they were not in business until November 1, 1996, nearly two months after Mr. Mohamed's accident. During the critical period in September 1996, their office was still being renovated and had no phones. I accept this evidence and, as a result, find that Mrs. Mohamed could not have spoken with Ms. Gaglia at her office in September 1996.

The remaining questions are whether Mrs. Mohamed spoke with Ms. Gaglia at another office, or spoke to someone else named Cathy. For reasons that follow, I am not persuaded that either possibility occurred during the critical period, if at all.

Ms. Gaglia testified that when her office opened, she received all her files from Mr. Tom Legrowe, a State Farm agent who was retiring. Therefore, Mr. Legrowe's office would have been the most likely contact for Mrs. Mohamed until Ms. Gaglia's office opened on November 1, 1996. While Ms. Gaglia and Ms. Lopiccolo acknowledged that they had a training period in Mr. Legrowe's office, both claimed that it did not start until mid-October 1996. I found their testimony consistent and credible, and accept it.

Mr. Blom suggested that Ms. Gaglia might have taken calls at Mr. Legrowe's office before mid-October. Ms. Gaglia agreed that she had been in his office in her previous capacity at State Farm and for social reasons, but denied that she would have taken any client calls. Again, I found her evidence credible and accept it. There was also some suggestion that Ms. Gaglia might have taken the call during a training assignment in another agent's office. Not only does the timing not work, there is no evidence to explain why Mrs. Mohamed would have called some other office.

The possibility that Mrs. Mohamed spoke to someone else named Cathy is harder to dismiss. Although all such contacts should be recorded on State Farm's "master file," errors are possible. However, neither Ms. Gaglia nor Ms. Lopiccolo knew of anyone named Cathy working in Mr. Legrowe's office. I find this reasonably persuasive given the fact that they spent approximately two weeks in that office starting only five weeks after Mr. Mohamed's accident.

Based on the evidence presented, I am not convinced that Mrs. Mohamed contacted anyone from State Farm before September 13, 1996. However, even if she did, that would not end the matter. Put at its highest, Mrs. Mohamed contacted someone at State Farm, although not Ms. Gaglia, and reported that her husband had been injured in an accident. The evidence does not establish whether she was asking for advice or wanted to make a claim, although I find more support for the former. Mr. Mohamed then consulted a lawyer who could have advised him to apply to State Farm. However, he decided to apply to American Home. In my view, even on such a generous interpretation of the facts, Mr. Mohamed's application to American Home should be treated as the first completed application for accident benefits.

For these reasons, State Farm's appeal is allowed.

IV. APPEAL EXPENSES

This appeal raised novel issues of general interest. However, it resulted from Mr. Mohamed's insistence on claiming benefits from State Farm. In the circumstances, I conclude that the participants, including American Home, should bear their own appeal expenses.