Mohamed Dirie v. Guarantee Company of North America, 2002 ONFSCDRS 10

Neutral Citation: 2002 ONFSCDRS 10

FSCO A01-000789

BETWEEN:

MOHAMED DIRIE

Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Fred Sampliner

Heard:

October 29, 2001, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Mr. Dirie

Rose Bilash for Guarantee Company of North America

Issues:

The Applicant, Mohamed Dirie, claims that he was injured in a motor vehicle accident on December 31, 2000. He filed for accident benefits from Guarantee Company of North America ("Guarantee"), under the Schedule.¹ Guarantee argues that the accident did not occur. The parties did not resolve his claims through mediation, and Mr. Dirie 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:

Was Mr. Dirie involved in an automobile accident on December 31, 2000?

Result:

Mr. Dirie was not involved in an automobile accident on December 31, 2000.

EVIDENCE AND ANALYSIS:

The oral evidence at this hearing consisted of Mr. Dirie's brief testimony, and that of Guarantee's expert, Mr. Al Jenkins, a private accident investigator and former Toronto police officer. Guarantee submitted a document brief containing the accident reports, driver and passenger statements, photographs of the accident scene/vehicle damages, and Mr. Jenkins' report. Mr. Dirie did not introduce any documentary evidence.

Mr. Dirie testified that he was picked up by his friend, Mr. Warsame, on the snowy New Year's eve, and that the car was involved in a collision with another vehicle. He said the accident occurred at around 10:15 p.m. at the intersection of Runnymede Drive and St. Johns Street in Toronto.

Mr. Dirie admitted that he had incorrectly identified the accident location as St. Clair Avenue by Dufferin and Keele streets in his February 2001 written statement. He said his memory of the accident was better at the hearing than at the time his statement was taken. Mr. Dirie subsequently testified that he was unable to recall any of the accident details or events of that evening that he had earlier set out in his written statement.

I find that Mr. Dirie's evidence is unreliable. I am prepared to accept that because he was not driving. Mr. Dirie might not know the exact location of the car at the time of the accident, but he did not explain why his memory of this fact was better 10 months after the event when he could not recall any other details of that evening.

The two drivers went to separate provincial collision reporting centres on the day after the accident to file reports. Each said that the accident occurred at the intersection of Runnymede Drive and St. Johns Street in Toronto at about 11:00 p.m. Both reports show that the collision occurred as the Warsame vehicle attempted to merge from the curb lane of Runnymede Drive into the left lane at or just beyond its intersection with St. Johns Street.

Guarantee agrees that the drivers' accident descriptions are consistent with each other, and also agrees that the damage to the front end of Warsame's vehicle (photos show a slightly buckled hood, cracked left front headlight and corner turn signal lamp) could be caused by a front-end collision with the other car.

However, Mr. Jenkins testified that the damages to the rear end of Mr. Warsame's car did not result from this claimed accident. Using the photographs, Mr. Jenkins testified that the Warsame car shows scuff marks or a small crease on the left door panel approximately three inches above the rocker panel and just below the body side moulding, and a paint scratch running horizontally on the left rear quarter panel from the gas cap to the tail light. According to Mr. Jenkins, this damage would result where the car's rear end was the first point of contact, but Mr. Warsame's vehicle has no consistent damage along the entire left side of the vehicle to justify the conclusion that there was a side-swipe collision.

Mr. Jenkins next examined the photographs of damage to the other vehicle. These pictures show a crease and marks along the width of the lower half of the two right door panels. Mr. Jenkins measured the bumper height of the same model as Warsame's vehicle, and determined that there is a four-inch height differential between the damaged area and the Warsame bumper, which would have struck this area to create the damage. This differential led Mr. Jenkins to suspect that the crease probably did not arise from a collision with Mr. Warsame's bumper.

Mr. Jenkins obtained insurance photographs of previous damages to the other vehicle. These 1997 photos show a broken front right turn signal lamp, dented front corner of the right fender, and a sizable mid-section crease to the right front fender just in front of the door panel. Mr. Jenkins compared the present damages with the 1997 photos and found that the past damages and damages from this claim matched. Mr. Dirie did not provide evidence to contradict the photographs of the other car showing that the 1997 damage matched the damages claimed from this incident and did not challenge the opinion of Guarantee's expert.

There is sufficient evidence from the photographs to support Mr. Jenkins' conclusion, and I agree with him. I find that the damage to the left rear half of the Warsame vehicle and all of the damage to the other vehicle did not arise from the accident that the drivers' described in their reports.

Mr. Jenkins' report and his oral evidence refer to inaccuracies or inconsistencies between the drivers' accident reports, Mr. Warsame's and Mr. Dirie's written statements, and Mr. Dirie's claim for accident benefits. These are relatively minor when compared to the contradictions in the physical damages, and I do not rely on them in reaching my decision.

Guarantee must establish on a balance of probabilities that Mr. Dirie was not involved in an accident on New Year's Eve 2000. The unrebutted evidence establishes quite clearly that the damage to the other car did not arise from this accident. Without damage on the vehicle allegedly struck by Mr. Warsame's car, I concur with Guarantee's expert that the accident did not occur between these vehicles. Therefore, I find that Mr. Dirie was not involved in the alleged two-car accident on December 31, 2000, and that his claim in arbitration for accident benefits should be dismissed.

EXPENSES:

The parties made no submissions on expenses. Either may apply for an assessment if they are unable to resolve this matter.

January 11, 2002

Fred Sampliner Arbitrator

Date