Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2009 ONFSCDRS 158
Appeal P08-00029
OFFICE OF THE DIRECTOR OF ARBITRATIONS
MAKVALA OMARASHVILI Appellant
and
ECHELON GENERAL INSURANCE COMPANY Respondent
BEFORE: David Evans
REPRESENTATIVES: Andrew Suboch for Mrs. Omarashvili Jamie R. Pollack and Jason H. Goodman for Echelon General Insurance Company
HEARING DATE: April 7, 2009
APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The appeal is dismissed and the arbitrator’s July 4, 2008 Order is confirmed.
If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.
November 18, 2009
David Evans Director’s Delegate Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
Mrs. Makvala Omarashvili appeals the arbitrator’s preliminary issue finding that she was “not injured in an accident” pursuant to s. 2 of the SABS–1996.1 Mrs. Omarashvili requests a rehearing before a different arbitrator on the basis that the arbitrator failed to answer the question before her.
II. BACKGROUND
Mrs. Omarashvili alleges that she was injured in a motor vehicle accident on December 31, 2005. Echelon General Insurance Company denied that she had been in an accident and refused her claim for accident benefits. After Mrs. Omarashvili applied for mediation and arbitration, the issue of whether she had been in an accident went to a preliminary issue hearing.
In her preliminary issue decision, the arbitrator reviewed the scant evidence before her. Mrs. Omarashvili claimed to have been a passenger in a Nissan Maxima that was struck by a Plymouth. She testified that the Maxima experienced a “serious, severe, impact” causing the Plymouth’s bumper to fall off.
Mr. Sam Kodsi, an accident reconstruction engineer who provided a report for Echelon, testified that the damages between the two cars were inconsistent with Mrs. Omarashvili’s description of the accident. First, the photos of the Plymouth showed only a dented license plate, whereas those of the Maxima, the car Mrs. Omarashvili alleged she was in, showed significant damage to multiple components along the entire width of the vehicle. Second, he testified it was not plausible for the impact to have detached the Plymouth’s bumper, an integral part of the front grill and the frame of the car. The arbitrator found that in any case the photos showed the Plymouth’s bumper to be intact.
The arbitrator found that Mr. Kodsi provided clear, concise, balanced and neutral evidence. She accepted his conclusion that the significant damage to the Nissan was not caused by the Plymouth. The arbitrator found 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.” She drew an adverse inference from the fact that Mrs. Omarashvili did not call the drivers of the two cars involved. She also found it significant that Mrs. Omarashvili did not obtain an expert’s report to respond to Mr. Kodsi’s conclusions.
The arbitrator concluded that Mrs. Omarashvili had not met her burden of proof and found that “Mrs. Omarashvili was not injured in an accident pursuant to section 2 of the Schedule.”
On February 17, 2009, the arbitrator ordered Mrs. Omarashvili to pay Echelon’s arbitration expenses.
III. ANALYSIS
At the appeal hearing, Mrs. Omarashvili did not dispute the factual findings of the arbitrator including credibility. She simply expanded upon the submission in her Notice of Appeal that “The Arbitrator failed to answer the question posed at the pre-hearing namely whether the Insured was involved in a motor vehicle accident. Rather, she assessed the evidence and concluded the Insured was not injured which is a radically different question.”
Mrs. Omarashvili submits that there is a difference between the issue as formulated in the pre-hearing letter and in the decision. The December 4, 2007 pre-hearing letter formulated the issue as “Was the Applicant involved in an ‘accident’ on December 31, 2005?” The preliminary issue hearing arbitrator formulated the issue as “Was Mrs. Omarashvili injured as a result of an ‘accident’ as defined in section 2(1) of the Schedule?” [Emphasis added.]
Mrs. Omarashvili submits that the use of the phrase “involved in an ‘accident’” meant that the only issue was if there was contact between the Maxima and the Plymouth. She then points to this passage from the decision:
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.”
Mrs. Omarashvili submits that this proves that there was contact, so she was “involved in” an accident and the arbitrator erred when she found she was not injured as a result of an accident.
I do not believe the difference between “involved in” and “injured as a result of” an accident matters in this case, considering the real issue. These generic formulations cover a number of situations under the definition of “accident” in s. 2(1) of the SABS:
“accident” means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.
Thus, there can be issues about:
- Whether there was impairment;
- Whether the impairment was directly caused by the incident;
- Whether it was an automobile that was involved in the incident;
- Whether the automobile was being used or operated at the time of the incident; or,
- Whether there was any incident at all – the real issue here.
The arbitrator made specific findings related to that last point. She found that the damage to the Nissan was not caused by the Plymouth. She found that Mrs. Omarashvili’s claim of being in a severe impact was not credible. Both these findings were based on the evidence before her.
Mrs. Omarashvili raises a valid point that the arbitrator did not specifically deal with Mr. Kodsi’s comment that “contact between the vehicles may have occurred.” It would have been preferable if the arbitrator had provided the kind of statement seen in Dirie and Guarantee Company of North America, (FSCO A01-000789, January 11, 2002): “The unrebutted evidence establishes quite clearly that the damage to the other car did not arise from this accident.… I concur with Guarantee’s expert that the accident did not occur between these vehicles.”
However, I am not persuaded that there is any error requiring a rehearing. The clear implication is that the arbitrator found there was no incident. If there was no incident, then Mrs. Omarashvili was not involved in an accident and suffered no resulting injuries. Either way, the conclusion is the same.
It was up to the arbitrator to weigh the evidence and determine whether or not Mrs. Omarashvili had met her burden of proof. The arbitrator concluded she had not, which was her prerogative.
Accordingly, the appeal is dismissed and the arbitrator’s July 4, 2008 decision is confirmed.
IV. EXPENSES
If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.
November 18, 2009
David Evans Director’s Delegate Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.