Koharik Sarkisian v. Co-operators General Insurance Company, 2001 ONFSCDRS 8

Financial Services Commission of Ontario

Neutral Citation: 2001 ONFSCDRS 8 FSCO A99-000966

BETWEEN:

KOHARIK SARKISIAN Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Fred Sampliner

Heard: September 14, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances: David Share for Ms. Sarkisian Philippa G. Samworth for Co-operators General Insurance Company

Issues:

The Applicant, Koharik Sarkisian, is the mother of Ara Sarkisian, who died as a result of a gunshot wound on November 14, 1998. She claims that her son's tragic death qualifies her for death and funeral benefits under the Schedule.¹ Co-operators General Insurance Company ("Co-operators") rejected her claims and the parties were unable to resolve their disputes through mediation. Ms. Sarkisian applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

1. Was Ara Sarkisian's death a result of an accident as defined by section 2 of the Schedule?

Result:

1. Ara Sarkisian's death was not a result of an accident as defined by section 2 the Schedule.

EVIDENCE AND ANALYSIS:

There were no witnesses to the death of thirty-two-year old Ara Sarkisian. He was killed by a single gunshot wound to his abdomen in the basement parking garage of his Scarborough apartment building. Mr. Sarkisian was found face down near his vehicle, close to the exit door. The hood of his car was raised, and the engine was off. The agreed facts filed by the parties states that Mr. Sarkisian may have been replacing windshield washer fluid.

The Applicant retained an investigator to examine this incident. The investigation report, the sole exhibit introduced at the hearing, indicates that Mr. Sarkisian was more than likely conducting maintenance on his car. The investigator's report states the building superintendent found Mr. Sarkisian's body on the garage floor. He saw the trunk and hood of the car were open, a funnel in the windshield washer reservoir, and a jug of fluid near the driver's door. The superintendent concluded that Mr. Sarkisian was working on his car at the time of the incident.

The agreed facts support the report of the superintendent's observations. His impression that Mr. Sarkisian was conducting maintenance on his car is the most plausible explanation for his presence in the garage. I find that Mr. Sarkisian was working on his car at the time he was attacked.

There is no evidence that theft was the motivation for this attack. Although the investigator saw notices throughout the building stating there had been a break-in and recent car theft in the underground garage, no possessions were taken from Mr. Sarkisian or his vehicle. I cannot infer that theft was the motivation for this slaying.

The Schedule defines an accident as follows:

2.(1) In this Regulation,

"accident" means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device;

Black’s Law Dictionary defines a "direct cause" as an incident which sets in motion a chain of events that brings about a result without the intervention of any new and independent source. A "proximate cause" is an incident commencing a continuous unbroken chain of events leading to an injury.² There seems little to distinguish the meaning of the two phrases.

Some cases dealing with incidents resulting from indirect causes have not qualified as accidents. For example, attacks on taxi drivers inside their vehicles and instances of road rage involved forces that were remote to the normal use and operation of motor vehicles.³ Neither was a criminal assault on a person approaching his car indirectly caused by the use or operation of the vehicle.⁴

In other instances, the adjudicator found a causal nexus between well-known ordinary uses of a vehicle and the injury.⁵ Physical contact of a person and a van during the course of an argument and a suicide brought about by asphyxiation from exhaust fumes were both found to be accidents because the vehicles were the instruments of the injury and death.⁶ A more remotely connected situation was a fare dispute between a taxi driver and passenger, which the court distinguished from other intervening criminal assaults because the incident was the end result of a taxicab operator's ordinary commercial relationship with the rider.⁷

Two cases decided under the current Schedule's wording, "directly causes," have adhered to the premise that a motor vehicle must be involved in the train of events. Where a bicyclist skidded off a roadway because of an oil slick, Arbitrator Novick found that a motor vehicle set in motion the uninterrupted events directly leading to the injury.⁸ Arbitrator Blackman distinguished an assault on a cab driver from the normal risks associated with operating a taxi by focussing on the assailant's use of brass knuckles as an independent intervening force.⁹

The critical feature missing from the facts in this case versus the other scenarios which have met the definition is that the car did not play a direct instrumental role in the chain of events leading to Mr. Sarkisian's death. Mr. Sarkisian's replacement of windshield fluid put him at the site of his car, but his vehicle played no role in his death or in any force giving rise to his death. Even if I were to accept that theft was the motive here, the direct and intervening instrument or cause of Mr. Sarkisian's death was the gunshot.

I find that the normal use and operation of Mr. Sarkisian's automobile did not directly cause his death, and I conclude that his unfortunate slaying was not an accident within the meaning of the Schedule. Therefore, Co-operators is not liable for payment of death and funeral benefits.

EXPENSES:

The parties may address their expenses if the matter cannot be resolved.

January 17, 2001

Fred Sampliner Arbitrator

Date

Neutral Citation: 2001 ONFSCDRS 8 FSCO A99-000966

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

KOHARIK SARKISIAN Applicant

and

CO-OPERATORS GENERAL 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:

1. Ms. Koharik Sarkisian's claims for death and funeral benefits under the Schedule are dismissed.

January 17, 2001

Fred Sampliner Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.
2. 2Black's Law Dictionary (West Publishing, 4th ed. 1968)
3. 3Ekunah and Simcoe and Erie General Insurance Company (OIC P-007550, April 22, 1996), Wubbie and Non-Marine Underwriters, Mbrs.of Lloyd's (FSCO A96-001436, June 13, 1997), Wellington Insurance Company and Mander (FSCO P-002057, December 30, 1997), Hanlon and Guarantee Company of North America (FSCO P95-00003, March 18, 1997), Co-operators General Insurance Company and Overley (FSCO P96-00043, March 20, 1997), Assaf and Commercial Union Assurance Company (FSCO A97-001404, December 23, 1998)
4. 4Kohli and State Farm Mutual Insurance Company (FSCO P99-00035, March 28, 2000)
5. 5Amos v. Insurance Corp. of British Columbia, (1995) 1995 CanLII 66 (SCC), 3, S.C.R. 405
6. 6Penaglia and Allstate Insurance Company of Canada (FSCO A97-001704, July 15, 1999), Vijeyekumar v. State Farm Mutual Automobile Insurance Company, 1999 CanLII 1640 (ON CA), 175 D.L.R. (4th) 154 (1999)
7. 7Saharkhiz v. Non-Marine Underwriters, Mbrs. of Lloyd s, London, England, 1999 CanLII 15099 (ON SC), 46 O.R. (3d) 154 (1999)
8. 8Petrosoniak and Security National Insurance Company (FSCO A98-000198, November 2, 1998)
9. 9Karshe and Non-Marine Underwriters, Mbrs. Of Lloyd's (FSCO A99-000855, December 15, 2000)