Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2014 ONFSCDRS 1

FSCO A12-001111

BETWEEN:

YURY PAPERNY

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Alec Fadel

Heard: October 21, 2013, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Faranaz Siganporia for Mr. Paperny

Michael Chadwick for State Farm Mutual Automobile Insurance Company

Issues:

Mr. Yury Paperny, the applicant, was allegedly injured in a motor vehicle accident on January 17, 2010. He applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Paperny applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the pre-hearing, a preliminary issue was identified by State Farm who claimed that Mr. Paperny was not involved in a motor vehicle accident.

Mr. Paperny alleged that he was in an accident when he was a passenger in the backseat of a BMW. He testified that while the BMW was driving through an intersection, it was hit by a Nissan vehicle that was coming in a perpendicular direction and failed to stop at the stop sign.

State Farm relies on an accident reconstruction report which concluded that the vehicles never came in contact with one another.

I find that the Mr. Paperny was not involved in a motor vehicle accident as alleged. The expert evidence provided by State Farm shows conclusively that the two vehicles did not collide at all. Mr. Paperny has failed to prove on a balance of probabilities that an accident occurred.

The Preliminary Issue:

Was Mr. Paperny involved in an “accident” as defined in section 2(1) of the Schedule?
Did Mr. Paperny wilfully misrepresent material facts with respect to an application for a benefit?

Result:

Mr. Paperny was not involved in an accident as defined by the Schedule.
Mr. Paperny wilfully misrepresented material facts with respect to his application for accident benefits.

EVIDENCE:

As has been confirmed in earlier arbitration decisions, the applicant bears the onus of proving that he was involved in an accident. The only significant evidence Mr. Paperny provided at the hearing was his own testimony. He did not provide an expert report or opinion to address the opinion of the insurer’s expert in a report of March 14, 2010. He also did not call any witness involved in the accident in order to corroborate his story of how the accident occurred. I find the report and testimony of Mr. Rob Seaton, collision reconstructionist for State Farm, overwhelmingly convincing that the accident could not have occurred as alleged by Mr. Paperny.

Mr. Paperny’s Testimony

Mr. Paperny testified that he was a passenger in the backseat along with his friend Polina. He testified that he and Polina had been at his home earlier that evening when Polina was contacted by one of her friends, Inna. Inna and her husband agreed to pick up Mr. Paperny and Polina and drive to a club where they could continue their evening. Mr. Paperny testified that he did not know either Inna or her husband but agreed to go with them to the club. They were in Inna’s BMW. Inna was driving and her husband was in the passenger seat, Polina and Mr. Paperny sat in the back seat. Mr. Paperny was not aware which club they were driving to as it was Inna who suggested the club and who knew where it was. He says they were driving for approximately 15 to 20 minutes and were conversing, getting to know each other just prior to the alleged impact. He stated that he did not drive that evening as he had been drinking with Polina prior to her receiving Inna’s phone call.

Mr. Paperny stated that while they were driving, the vehicle received an unexpected hit to the right side. It was alleged that a Nissan hit the BMW. He stated that the reason the Nissan hit his vehicle was because the driver of the Nissan disobeyed a stop sign indicating the BMW had the right of way.

Mr. Paperny testified that he was wearing his seatbelt which helped to restrain him but also stated that he had hit the front seat during the impact. He stated that following the accident, he called a friend to pick him up, but could not recall who he contacted and who eventually picked him up. On cross-examination, Mr. Paperny confirmed that the vehicle was driving approximately the posted speed limit. He stated that he was not driving and not paying attention to the driving, but that the car was not going fast and was likely travelling at the posted speed limit which was noted to be 60 km/h.

The Collision Reconstruction

Mr. Seaton began his career working for the Metropolitan Toronto Police in 1976 and moved to the Ontario Provincial Police (OPP) in 1986 until 1999. He worked as a collision reconstructionist for the OPP, which entailed, among other things, explaining the physics/ motion involved in a collision. He testified that he has taken the required training in this area including an advanced course taught in the United States referred to as Level V, which he completed in 2007. This course was specific to mathematics with regard to the handling/stopping/turning of vehicles and understanding mathematically how vehicles respond in a collision. Mr. Seaton completed Level III of this course in 1991 and Level IV in 1994. After retiring from the OPP in 1999, Mr. Seaton started his own consulting business, which he has been operating ever since. On his own, he has undertaken examining low speed collision investigation. He testified that he has done thousands of investigations in the course of his career. He has been a forensic science lecturer at the University of Toronto since 1997. He has been qualified as an expert in the area of accident reconstruction in the past by both FSCO and the Superior Court. He was qualified as an expert to give opinion in the area of collision reconstruction for the purpose of this hearing.

Mr. Seaton completed a motor vehicle collision report dated March 14, 2010. He testified that he was able to physically examine both the BMW and the Nissan. Mr. Seaton testified that the damage to the BMW was consistent with it being stationary at the time of impact. Importantly, Mr. Seaton concluded that there would be horizontal abrasions on the BMW given that it would have been moving at least 40 km/h at the time of impact if the accident occurred as Mr. Paperny described. Mr. Seaton stated that even if the collision had happened while the vehicle was stationary, the damage was not consistent with the BMW being hit by the Nissan.

Mr. Seaton noted some inconsistencies in the February 2010 statements that were given by the other three individuals who were in the BMW:

Inna, the driver, indicated that the roads were wet however the police report noted that the road surface was dry
Inna indicated she was not driving fast and was going no more than 60 km/h. The police report noted the speed of 40 km/h
At one point Inna indicated that she was looking straight ahead at the time of collision but at another point noted that the other vehicle was driving pretty fast and she did not think it had tried to stop
Polina gave a statement that all four occupants got out of their vehicle right after the impact. This was contradicted by the statement of Stanislav (Inna’s husband) who reported that he was in shock after the accident and took about 15 minutes before he exited the vehicle to speak with the other driver

When looking at the actual damage to the two vehicles, Mr. Seaton concluded that they did not collide with one another. The main points for this conclusion are as follows:

the abrasions to the BMW were not horizontal in nature which goes against the statement of both drivers that the vehicles were in motion at the time of the collision
there was no black paint transfer from the black Nissan to the silver BMW or vice versa
the elevation of the damage to the BMW did not correspond with the height of the Nissan
there was no cross transfer of blue or white paint from the front licence plate of the Nissan or licence plate impression that would have been expected given the frontal damage on the Nissan and the collision sequence of events as reported
there was isolated abrasion damage and superficial denting to the right side of the BMW that did not correspond to the profile, elevation or extent of damage on the frontal aspect of the Nissan
there was no geometric pattern on the BMW damage that would coincide with the front grill of the Nissan
the isolated crush damage to the Nissan engine hood did not correspond to the profile of the damage on the BMW and was not consistent with the collision sequence of events as reported

ANALYSIS:

I agree with the insurer’s submission that the physical evidence is clear and unequivocal that the BMW and Nissan vehicles did not come into contact with one another. Mr. Seaton’s evidence overwhelmingly suggests that the two vehicles did not collide. Mr. Seaton could not explain the denting on the BMW but had no issue concluding that it was not from a collision with the Nissan.

The evidence of Mr. Seaton was uncontroverted by Mr. Paperny who did not file an expert report or call anyone on his behalf, despite being in possession of Mr. Seaton’s report dated March 14, 2010. The evidence of Mr. Seaton withstood cross-examination and there was nothing before me that would call into question his opinion.

I have concerns with Mr. Paperny’s evidence concerning the motor vehicle accident. Firstly, the collision report clearly supports that the two vehicles did not collide. Secondly Mr. Paperny had a lot of issues with recall on circumstances surrounding the accident, such as:

he could not recall the name of the road they were driving on at the time of impact
he was not aware if it was snowing or the visibility on the road
he did not know who called the police
he did not remember the name of the individual he called to pick him up from the scene of the alleged accident

Mr. Paperny explains that he was in shock following the accident, had been drinking, and that it happened some time ago which accounts for his memory issues. This may account for some of his memory issues, but some specific details should be easy to recall. I specifically take issue with the suggestion that Mr. Paperny called a friend to pick him up but could not remember who actually came to help him. Also, Mr. Paperny testified that he hit the seat in front of him during the impact though he was wearing a seatbelt with no adequate explanation given as to how he hit the seat in front of him while belted and from a side impact.

Willful Misrepresentation?

Section 48 of the Schedule states that an insurer may terminate a benefit if an applicant “has wilfully misrepresented material facts with respect to an application for a benefit.” In this instance, State Farm submits that if one accepts the findings of Mr. Seaton one must then conclude that Mr. Paperny has wilfully misrepresented material facts, in this case being that an accident happened at all. I have already noted my issues with Mr. Paperny’s lack of recall regarding the accident. This coupled with my acceptance of the findings of Mr. Seaton, I agree with the insurer that no other conclusion can be made other than that Mr. Paperny wilfully misrepresented the circumstances surrounding the alleged accident when applying for accident benefits.

Conclusion

I have issues with the credibility of Mr. Paperny. Also, considering the report and testimony of Mr. Seaton, I find that Mr. Paperny was not involved in an accident as defined by section 2 of the Schedule.

I agree with the insurer that the only conclusion that can be drawn from the evidence is that Mr. Paperny wilfully misrepresented the facts in order to make a claim for accident benefits.

January 2, 2014

Alec Fadel

Arbitrator

Date

Financial Services Commission des