Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 109

FSCO A07-001589

BETWEEN:

MAKVALA OMARASHVILI

Applicant

and

ECHELON GENERAL INSURANCE COMPANY

Insurer

Before: Joyce Miller

Heard: May 20 and 21, 2008, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Vadim Malychev for Mrs. Omarashvili

Jamie Pollack and Jason Goodman for Echelon General Insurance Company

Issues:

The Applicant, Makvala Omarashvili, alleges she was injured in a motor vehicle accident on December 31, 2005. She applied for statutory accident benefits from Echelon General Insurance Company (“Echelon”), payable under the Schedule.¹ Echelon denied her claim. The parties were unable to resolve their disputes through mediation, and Mrs. Omarashvili 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:

Was Mrs. Omarashvili injured as a result of an “accident” as defined in section 2(1) of the Schedule?

Result:

Mrs. Omarashvili was not injured as a result of an “accident” as defined in seciton 2(1) of the Schedule.
If needed, I may now be spoken to on the issue of expenses.

BACKGROUND

On January 1, 2006, Mr. Giorgi Tadiashvili filed a Self Reporting Collision Report to the Ontario Ministry of Transportation. In his report, Mr. Tadiashvili stated that on December 31, 2005, at 11:15 p.m. his vehicle, a Nissan Maxima was rear ended by a 1996 Plymouth driven by Meeran Yu. He stated that this accident occurred while he was driving eastbound on Drewery Avenue at Cactus Avenue. In his report, where required to state whether there were any witnesses to the accident, Mr. Tadiashvili left the box blank.

The Applicant in this case, Mrs. Omarashvili, claims that she was a passenger in Mr. Tadiashvili’s car at the time of the accident and that she was injured as a result of this accident. Echelon denied Mrs. Omarashvili’s claim for accident benefits on the basis that Mrs. Omarashvili’s claim that she was involved in the accident was not credible.

The burden of proof rests upon Mrs. Omarashvili to show that on a balance of probabilities, she was involved in an accident as defined in section 2(1) of the Schedule.

For the following reasons, I find that Mrs. Omarashvili has not met her burden of proof.

EVIDENCE

Mrs. Omarashvili provided very limited testimony at the arbitration hearing. In addition to her oral testimony, she relied on the transcript of her Examination under Oath on December 12, 2006. Mrs. Omarashvili did not call any other witnesses to corroborate her version of the accident. Neither did she call an expert to respond to Echelon’s expert report by Sam Kodsi, an accident reconstruction engineer.

Mrs. Omarashvili testified that at the time of the accident, she resided in the home of Mr. Tadiashvili and his wife. She stated that on New Years Eve, 2005, she was a rear, right-seat, passenger in a car driven by Mr. Tadiashvili. His wife was with her in the back seat. Mrs. Omarashvili stated that they were going to a friend’s home to deliver a New Year’s Eve gift basket.

Mrs. Omarashvili testified that when the car was turning down the street where her friends lived, it experienced a “serious, severe, impact” from a car driven by Ms. Yu. Mrs. Omarashvili stated that she exited the car after five or ten minutes and saw that the car which had hit them was damaged in the front. Specifically, she stated that the front of the Plymouth [the bumper] had fallen to the ground. She also saw a “severe” leakage coming from the car. Mrs. Omarashvili stated that the driver of the other vehicle smelled of alcohol.

Mrs. Omarashvili testified that they then called their friends who they were intending to visit. These friends, Pata Dzimdzibadze and his wife Rebecca, arrived at the scene of the accident.

In the transcript of her Examination under Oath at page 24, Mrs. Omarashvili stated that Mr. Dzimdzibadze called the police to report the accident and was told if no one was injured, then the drivers should exchange their information and make a police report.

The evidence shows that in the Self Reporting Collision Report, Mr. Tadiashvili stated that his address was 758 Botany Hill Cres., Newmarket R1, Ontario L3X 3A8. Under cross-examination Mrs. Omarashvili stated that at the time of the accident she was living at 22 Carscadden Drive, in Toronto. She offered no explanation for the discrepancy.

There were numerous discrepancies presented by Echelon in respect of Mrs. Omarashvili’s reporting of the accident – both in her testimony and especially in her Examination under Oath. Although I have considered all of the evidence presented in this regard, I focus my finding on the most relevant and significant of the evidence presented. This evidence being the 19 pictures (six having been taken by the police at the Reporting Centre) of the damage to the vehicles involved in the alleged accident, as well as, the report and testimony of the expert witness, Mr. Sam Kodsi.

In Mr. Kodsi’s report of December 8, 2006, he concluded that “The damage sustained by the front of the Plymouth and by the rear of the Nissan was not consistent with a collision between the vehicles as reported, even though contact between the vehicles may have occurred.”

In his testimony, Mr. Kodsi stated that when there is a collision between two vehicles one expects to see consistency of damage with respect to locations, heights, widths, severities and other specific details. Mr. Kodsi stated that there was a complete lack of consistency in the damages between the two cars.

Mr. Kodsi pointed out that the photos of the Plymouth showed that the Plymouth did not sustain any significant, or any, damage whatsoever. However, the photos of the Nissan, the car Mrs. Omarashvili alleges she was in, showed that the Nissan sustained a significant amount of damage to multiple components along the entire width of the vehicle. These damages included:

The entire bumper assembly which includes three components: the bumper reinforcement bar — which is the skeleton of the bumper; the energy absorbing foam that is usually, placed behind the frame; and the bumper cover, which is what we see on the car.
The right upper portion of the car frame of the vehicle which is above the bumper was pushed forward.
The trunk lid was deformed.
The floor pan of the trunk was wrinkled.
Both left and right rear quarter panels, which are situated behind the rear doors and above the wheels wells on the side of the car were dented.
Both taillight lens covers, which illuminate the taillights and which are built to be impact resistant, were smashed. In addition, a portion of the left taillight’s inner housing, that contains the lights and electrical wiring, was missing.

Mr. Kodsi testified that the damage to the Nissan was not consistent with Mrs. Omarashvili’s allegation of an impact between the Nissan and the Plymouth. Mr. Kodsi pointed out that the bumper heights of both cars were at the same level at approximately two feet off the ground. The photos of the Plymouth, however, show that there was no evidence of contact damage to its bumper — not even scrapes or scuff marks. There was only a slight damage to the front license plate. On the other hand, the photos show that the significant damage to the Nissan was three feet off the ground — one foot above the Plymouth’s bumper.

With respect to the damage to the taillight, Mr. Kodsi pointed out several significant discrepancies. First, he noted that the taillights were located one foot above the bumper level of the Plymouth and accordingly could not have been struck by the Plymouth’s bumper. Second, he pointed out, even if a vehicle had crashed into the back of the Nissan with great force, in order for the taillights to be crushed the way they were, there had to be damage around the taillights. In this case, the photos show there is no damage whatsoever to the area around either taillight.

Mr. Kodis pointed out that Mrs. Omarashvili’s testimony that the impact caused the bumper of the Plymouth to detach from the car and fall to the ground was not plausible, since the bumper of the Plymouth was built-in as an integral part of the front grill and the frame of the car. Specifically, the Plymouth’s bumper is wrapped around the vehicle and is attached to the vehicle at about a dozen connection points. Mr. Kodsi stated that even in high speed crashes it is difficult for a front cover bumper to partially or completely detach and fall to the ground. In any case, contrary to Mrs. Omarashvili’s claim, the photos show the Plymouth’s bumper to be intact.

Accordingly, Mr. Kodsi concluded that it was his expert view that the damage to the Nissan was not caused by the Plymouth.

FINDINGS

I fully accept Mr. Kodsi’s conclusion. Mr. Kodsi was an excellent expert witness. He displayed a high level of knowledge about his field of expertise in accident reconstruction. He provided his testimony in a clear, concise manner, avoiding technical jargon where possible. Where needed, he explained technical terms in an easily understandable manner. Most importantly, he gave his evidence in a balanced and neutral manner, in the face of a rigorous cross examination.

Accordingly, for all these reasons, I accept Mr. Kodsi’s conclusion that based on the physical evidence of both cars as they appear in the photographs, that the damages of the Nissan were not caused by the Plymouth.

How the Nissan incurred such significant damage, when the Plymouth only had a dented license plate, remains a mystery. However, what is clear, based on the objective evidence, is that Mrs. Omarashvili’s claim that she was a passenger in a “serious, severe, impact” by a car whose front bumper had detached and fallen on the ground on impact is not credible. I draw an adverse inference from the fact that Mrs. Omarashvili did not call material witnesses, such as Mr. Tadiashvili, the driver of the car she alleges she was in, and/or Ms. Yu, the driver of the car, whose bumper she alleges fell off on impact, to corroborate her story. I also find it significant that Mrs. Omarashvili did not, at a minimum, obtain an expert’s report to respond to the conclusions in Mr. Kodsi’s report.

Accordingly, for all these reasons, I find that Mrs. Omarashvili has not met her burden of proof. Accordingly I find that Mrs. Omarashvili was not injured in an accident pursuant to section 2 of the Schedule.

EXPENSES:

If needed, I may now be spoken to on the issue of expenses.

July 4, 2008

Joyce Miller Arbitrator

Date