Ferenc Miko v. York Fire & Casualty Insurance Company, 2003 ONFSCDRS 142

Financial Services Commission of Ontario

Neutral Citation: 2003 ONFSCDRS 142

FSCO A02-000985

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

FERENC MIKO

Applicant

and

YORK FIRE & CASUALTY INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Fred Sampliner

Heard:

July 14, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Mathew Kessig for Mr. Miko

Mark Fonseca for York Fire & Casualty Insurance Company

Issues:

York Fire & Casualty Insurance Company ("York") denied Mr. Ferenc Miko's claims for statutory accident benefits on the basis that he was not involved in an accident on July 13, 2001, as defined by the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Miko applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

1. Was Mr. Miko injured in an "accident", as defined by subsection 2(1) of the Schedule?

Result:

1. Mr. Miko was not injured in an "accident", as defined by subsection 2(1) of the Schedule.

EVIDENCE AND ANALYSIS:

I have briefly summarized below the relatively simple agreed facts on this preliminary issue. The parties made oral submissions.

On the morning of July 13, 2001, Mr. Miko went to retrieve a package from his friend's van, parked on the street. He took the package from the van, locked the door, turned and stepped onto the adjoining sidewalk to walk back towards the house when he was struck by a bicycle and fell on the lawn.

In my view, this situation does not require a great deal of legal analysis in order to determine whether Mr. Miko was injured in an "accident" as defined under the Schedule, which "means an incident in which the use or operation of an automobile directly (my emphasis) causes an impairment...."² I accept that Mr. Miko was engaged in an ordinary and well known activity attached to automobile use when he retrieved the package from his friend's vehicle.³

However, I do not agree with Mr. Miko that the Seale (supra), Shantz⁴ Souchuk⁵ or Saad⁶decisions support his position. The drivers in both Seale and Shantz slipped and fell while their vehicles were directly involved in emergency situations, and in Saad the driver fell immediately adjacent to the car while engaged in normal vehicle maintenance. The distinguishing feature in all four of these decisions is that the injuries arose through direct normal use of the vehicles, not forces emanating from an outside or independent source.

Mr. Miko's retrieval of the package from the van and proximity to it at the time he was struck by the bicycle bears closer resemblance to the fact scenarios in the Kohli,⁷ Elensky⁸ Sarkisian⁹Karshe¹⁰ and Mahadan¹¹ decisions. In those cases, personal assaults, use of weapons and a road defect were found to be the independent intervening forces primarily causing the applicants injuries.

In my view, Mr. Miko's proximity to the vehicle and retrieval of the package is coincidental, but not the direct cause of his injuries. I find that the bicycle striking Mr. Miko is a new and independent intervening force because it did not emanate from or arise out of an ordinary use normally attached to an automobile. In conclusion, I find that Mr. Miko was not injured in an accident which was directly caused by an automobile, as defined by subsection 2(1) of the Schedule, and he is not entitled to accident benefits under the Schedule.

EXPENSES:

If the parties cannot agree, they may apply for an assessment of expenses providing they comply with Rule 79 of the Dispute Resolution Practice Code (4^th^ ed. May 21, 2001)

September 18, 2003

Fred Sampliner

Arbitrator

Date

Neutral Citation: 2003 ONFSCDRS 142

FSCO A02-000985

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

FERENC MIKO

Applicant

and

YORK FIRE & CASUALTY 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. Mr. Miko's claims for accident benefits under the Schedule are dismissed.

September 18, 2003

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, 303/98, 114/00 and 482/01.
2. 2Subsection 2(1) of the Schedule
3. 3Belair Insurance Company Inc. and Seale (FSCO P02-00005, January 28, 2003)
4. 4Shantz and Dominion of Canada General Insurance Company (FSCO A01-001147, May 13, 2002)
5. 5Souchuk and State Farm Mutual Automobile Insurance Co. (FSCO A02-000309, November 27, 2002)
6. 6Saad and Federation Insurance Company of Canada (FSCO A02-001279, April 24, 2003)
7. 7Kohli and State Farm Mutual Automobile Insurance Company (FSCO P99-00035, March 28, 2000)
8. 8Elensky and Royal & SunAlliance Insurance Company of Canada (P01-00030, August 9, 2002)
9. 9Sarkisian and Co-operators General Insurance Company (FSCO A99-000966, January 17, 2001)
10. 10Karshe and Non-Marine Underwriters, Mbrs. Of Lloyd's (FSCO A99-000855, December 15, 2000)
11. 11Mahadan and Co-operators General Insurance Co. (FSCO A00-000489, March 15, 2001)