FINANCIAL SERVICES COMMISSION OF ONTARIO
Neutral Citation: 2003 ONFSCDRS 78
FSCO A02-001190
BETWEEN:
THI YEN TRAN Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer
REASONS FOR DECISION
Before: Catherine Skinner
Heard: March 24, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: David F. Longley for Ms. Tran John P. Desjardins for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Thi Yen Tran, claims to have been injured in a motor vehicle accident on June 7, 2001. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.1 State Farm terminated benefits and takes the position that Ms. Tran was not involved in a motor vehicle accident. The parties were unable to resolve their disputes through mediation, and Ms. Tran 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 Ms. Tran involved in a motor vehicle accident on June 7, 2001?
Result:
- Ms. Tran was involved in a motor vehicle accident on June 7, 2001.
EVIDENCE AND ANALYSIS:
Ms. Tran's Evidence
Ms. Tran gave her evidence through a Vietnamese interpreter. She testified that she went out for dinner with her friend Hoa Kim Tri on the evening of June 7, 2001. She was driving home at approximately 9:00 p.m. with Ms. Tri in the passenger seat of her Volkswagen Passat. Ms. Tran states that she approached the intersection of Scarlett Road and Ellins Avenue going northbound in the left lane. She estimated her speed at approximately 50km/h. As she approached the intersection, a vehicle travelling southbound on Scarlett Road attempted to make a left turn onto Ellins Avenue and turned directly in front of Ms. Tran's car. Ms. Tran does not specifically recall if she attempted to steer her car or brake before colliding with the other vehicle, but she does recall her vehicle swerving to the right. Ms. Tran collided with the other vehicle and she testified that the impact was on the left side of her vehicle. After the collision, both cars came to rest facing north on Scarlett Road. The damage to Ms. Tran's vehicle was largely on the left side of the car and the front bumper was damaged and had to be removed.
After the collision, Ms. Tran got out of her car and spoke with the driver of the other vehicle, who identified herself as Sonia Crooks. Ms. Tran recalls being upset and shocked and accusing the other driver of being careless. Ms. Tran intended to phone the police after the collision, but the other driver assured her that the police would not come to the scene of the accident, so she did not contact the police. Ms. Tran did not speak to any of the other occupants of the other vehicle but she noticed that there were three or four people in the car. Ms. Tran says that she got the other driver's information from her driver's license which identified her as Sonia Crooks. Ms. Tran also saw Ms. Crooks's insurance information.
Ms. Tran left the scene of the accident after about half an hour. Ms. Tri made her own way home and Ms. Tran went home by herself. She then went with her son to a collision reporting centre. She arrived there at approximately 10:00 p.m. She gave the relevant information to the attending police officer. The police officer took a photograph of her car and told her not to drive it home. Subsequently, Ms. Tran's vehicle was repaired at the Omega Body Shop.
Ms. Tran testified that she did not know Ms. Crooks or anyone else in Ms. Crooks's car before the accident.
Ms. Crooks's Evidence
Ms. Sonia Crooks also testified at the hearing. In June 2001, Ms. Crooks was the owner of a 1989 Toyota Corolla. Ms. Crooks testified that she was not involved in an accident with Ms. Tran on June 7, 2001. She states that a friend, Sophie, told her that she could make some money if she reported a fictitious accident to her insurance company. Sophie picked up Ms. Crooks's car on June 7, 2001 and took Ms. Crooks's driver's license and insurance information. Later, Ms. Crooks heard from Sophie that her car had been damaged and that she could pick it up at a garage on Runnymede Street. Sophie told Ms. Crooks the information to put in her collision report, including the name of the other driver and the names of the passengers in her car. Ms. Crooks went to a collision reporting centre and filed a report stating that she had been involved in a collision with Ms. Tran. The details provided were similar to those in Ms. Tran's report of the collision. Ms. Crooks now indicates that her collision report was a fabrication because she was not involved in the accident.
Ms. Crooks does not know whether the damage to her car was caused by a collision with Ms. Tran's vehicle.
Mr. Walters's Evidence
Mr. Scott Walters also testified at the hearing. Mr. Walters was accepted as an expert in the fields of forensic engineering and the reconstruction of accidents.
Mr. Walters was hired by State Farm to investigate the accident involving Ms. Tran and the person identified as Ms. Crooks. He reviewed Ms. Crooks and Ms. Tran's collision reports, the photographs taken of the two vehicles and he examined Ms. Crooks's Toyota Corolla.
Mr. Walters testified that the physical evidence was not consistent with Ms. Tran's description of the accident. Specifically, he believed that the damage to Ms. Crooks's car was not consistent with being struck by a vehicle travelling at 50km/h. In his opinion, Ms. Tran's car would have been travelling at approximately 7 to 12 km/h upon impact with Ms. Crooks's car. Based on Ms. Tran's description of the accident, Mr. Walters would also have expected that Ms. Tran's car struck Ms. Crooks's car and then moved towards the rear of Ms. Crooks's vehicle. Instead, the physical evidence is consistent with Ms. Tran's vehicle striking Ms. Crooks's car and then moving forward along the right side of the vehicle.
Mr. Walters testified that the evidence in this case is more consistent with a low speed side swipe type of collision. He stated that there was paint transfer between the two vehicles which strongly suggests that there was some type of impact between the two.
In cross examination, Mr. Walters acknowledged that, theoretically, Ms. Crooks's car may have nearly completed a u-turn in front of Ms. Tran's car at the time of impact. This would account for the side swipe type of damage to the vehicles. He pointed out, however, that there would not have been time for Ms. Crooks's vehicle to have nearly completed a u-turn before colliding with Ms. Tran, given Ms. Tran's evidence that she was driving at approximately 50km/h.
Analysis
Ms. Tran bears the onus of proving on a balance of probabilities that she was involved in a motor vehicle accident on June 7, 2001. In support of her case, she relies on her own testimony and on the collision report which she completed at a collision reporting centre on the evening of June 7, 2001. Ms. Tran's testimony concerning the mechanics of the accident are consistent with her contemporaneous report at the collision reporting centre.
State Farm sought to impeach Ms. Tran's credibility by pointing out inconsistencies between her testimony and previous sworn statements she had given to State Farm concerning the events of June 7, 2001. Specifically, Ms. Tran was not consistent on the question of whether she had met another friend on the evening of June 7 before meeting with Hoa Kim Tri. She was also not consistent on the question of how she contacted Ms. Tri before going out for dinner that evening.
I do not find these inconsistencies to be so significant as to impugn Ms. Tran's testimony in its entirety. On all material points, Ms. Tran was consistent in her testimony and was not significantly undermined in cross examination.
I accept Ms. Tran's testimony that she was involved in a collision with a 1989 Toyota Corolla on the evening of June 7, 2001.
Ms. Crooks's evidence indicates that she herself was not involved in a motor vehicle accident on June 7, 2001. Her evidence does not support or contradict Ms. Tran's evidence concerning the mechanics of the accident. Although I accept that Ms. Crooks was not involved in the accident, her evidence does indicate that her car was damaged in a collision and that someone using Ms. Crooks's driver's license had been driving her car on that evening. Although the driver of Ms. Crooks's car may have intentionally entered into a collision on the evening of June 7, 2001, this does not support a finding that Ms. Tran intentionally entered into a collision. There is no evidence before me to suggest that Ms. Tran knew Ms. Crooks or the driver of Ms. Crooks's car, or conspired with either of them to stage an accident.
Mr. Walters testified that the physical evidence of the accident does not support Ms. Tran's version of the event. He acknowledged, however, that there was some sort of impact between the two vehicles. In his opinion, the vehicles were moving much slower than 50 km/h and the mechanics of the collision were different from those described by Ms. Tran.
I accept that Ms. Tran may not be entirely accurate in her recollection of the speed at which she was travelling or the mechanics of the accident. This does not lead me to conclude that the accident was staged. Rather, I find that Ms. Tran's memory of the events may be affected by the lapse of time or the traumatic nature of the incident. It is not surprising that, as a participant in a car accident, she does not have a specific recollection of every detail concerning the accident.
I find that Ms. Tran was involved in a collision with Ms. Crooks's motor vehicle on the evening of June 7, 2001. The evidence does not support a finding that Ms. Tran staged the motor vehicle accident.
EXPENSES:
The parties made no submissions regarding expenses. If they are unable to resolve the issue of expenses, they may request an appointment under Rule 79.1 of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001) for a determination of expenses.
May 15, 2003
Catherine Skinner Arbitrator
Date
Neutral Citation: 2003 ONFSCDRS 78
FSCO A02-001190
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
THI YEN TRAN Applicant
and
STATE FARM MUTUAL AUTOMOBILE 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:
- Ms. Tran was involved in a motor vehicle accident on June 7, 2001.
May 15, 2003
Catherine Skinner Arbitrator
Date
Footnotes
- The 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.