Neutral Citation: 2002 ONFSCDRS 172
FSCO A02-000215
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
MARK GREEN (ESTATE OF)
Applicant
and
KINGSWAY GENERAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
Joyce Miller
Heard:
September 17, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Russell J. Howe for Mr. Green (Estate of)
Mark H. Fonseca for Kingsway General Insurance Company
Issues:
The late Mark Green was injured in a motor vehicle accident on December 2, 2000. He applied for statutory accident benefits from Kingsway General Insurance Company ("Kingsway"), payable under the Schedule.1 Kingsway did not pay any benefits. Mr. Green subsequently died and the Estate of Mr. Green ("the Estate") proceeded with his claim. The parties were unable to resolve their disputes through mediation, and the Estate applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
- Is the Estate permitted to withdraw its Application for Arbitration? If so, under what conditions?
Result:
The Estate's request to withdraw its Application for Arbitration is granted.
The Estate must pay Kingsway's assessment fee in the amount of $3,000 pursuant to subsection 282(11.2) of the Insurance Act.
The Estate must pay Kingsway its reasonable legal expenses.
Background:
At the start of the hearing Kingsway presented a written background of the case from its own perspective. Mr. Howe, counsel for the Estate, agreed that the information in this document could be admitted as an Agreed Statement of Facts. The agreed facts are as follows:
Mr. Green, our insured, was involved in a motor vehicle accident on December 2, 2000. He applied [to Kingsway] for accident benefits, including income replacement benefits. Based on the statement that he gave to the Independent Adjuster on December 18, 2000, and his Application for Accident Benefits, it was determined that Mr. Green did not qualify for Income Replacement Benefits. He indicated that 1) he was not self-employed, 2) the last date he had worked immediately prior to the accident was October 6, 2000 and 3) he had not worked for 26 of the 52 weeks prior to the accident.
As Mr. Green did not qualify for an Income Replacement Benefit, the claim was adjusted based on a non-earner benefit. In order to determine whether or not Mr. Green would meet the statutory test to receive a non-earner benefit, an Insurer's Examination was arranged, and correspondence dated April 3, 2001 was sent to Mr. Green notifying him of the Examination scheduled for April 24, 2001.
Unfortunately, Mr. Green had passed away on March 31, 2001 of causes unrelated to the subject motor vehicle accident. Neither Kingsway, not the assessment centre was notified that Mr. Green was deceased and a no-show fee was incurred.
The parties currently agree that Mr. Green would not have been entitled to non-earner benefits as non-earner benefits would not have been payable until June 2, 2001.
The Estate of Mr. Green is claiming the Income Replacement Benefit to which it alleges Mr. Green would have been entitled for the period between December 9, 2000 and March 31, 2001.
The evidence in Kingsway's possession in this matter consists solely of: 1) the Statements of Mark Green, 2) the Application for Accident Benefits with accompanying forms and 3) correspondence from IATSE.