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

Neutral Citation: 2017 ONFSCDRS 147

FSCO A15-008640

BETWEEN:

BEULAH LAFONTAINE

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Maggy Murray

Heard: January 24, 2017, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions completed March 6, 2017

Appearances: Ian Little for Ms. Lafontaine Darrell March for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Beulah Lafontaine, was the common-law spouse of the late Paul Lynn. Mr. Lynn was in a motor vehicle accident on June 14, 2014 and died in hospital on June 21, 2014.

An application was made for death benefits to be paid to Ms. Lafontaine, Mr. Lynn’s spouse. State Farm refused to pay death benefits under s. 26(2) of the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Lafontaine applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Was Mr. Lynn's suicide and subsequent death "as a result of an accident" as defined by s. 3(1) of The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as it read immediately prior to April 1, 2016?

2. Is Ms. Lafontaine entitled to a death benefit, in the amount of $25,000.00, in relation to the death of her spouse, Mr. Paul Lynn pursuant to subsection 26(2)1.i. of the Schedule?

3. Is State Farm liable to pay Ms. Lafontaine’s expenses in respect of the arbitration?

4. Is Ms. Lafontaine liable to pay State Farm’s expenses in respect of the arbitration?

5. Is Ms. Lafontaine entitled to interest for the overdue payment of benefits?

Result:

1. Mr. Lynn's suicide and subsequent death was not "as a result of an accident" as defined by s. 3(1) of The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as it read immediately prior to April 1, 2016.

2. State Farm is not required to pay Ms. Lafontaine death benefits pursuant to subsection 26(2)1.i of the Schedule.

3. The issue of the expenses of this proceeding is deferred.

EVIDENCE AND ANALYSIS:

Witnesses

The Applicant, Ms. Lafontaine, testified on her own behalf. The insurer did not call any witnesses.

Ms. Lafontaine was a credible witness who gave her evidence in a straight forward manner.

Background

Mr. Lynn was driving Ms. Lafontaine’s car when he rear-ended another car on the highway on the afternoon of June 14, 2014. After the accident, Mr. Lynn telephoned Ms. Lafontaine and told her he was in an accident. A tow truck driver took Mr. Lynn to two different mechanic shops but they were closed. The tow truck driver then drove Mr. Lynn home.²

According to Ms. Lafontaine, Mr. Lynn went to sleep shortly after he returned home. She woke him up at 1:00 a.m. the day after the accident to help him to the bathroom, after which he went back to sleep. The day after the accident, Ms. Lafontaine tried to wake Mr. Lynn up but he did not respond to her when she called his name. In the afternoon, Ms. Lafontaine called 911 and paramedics came to their house. Mr. Lynn told the paramedics that he took 93 sleeping pills.³ He was taken to hospital and died one week later in hospital.

Mr. Lynn’s death was initially reported by the hospital as resulting from urosepsis.⁴ However, based on the high concentration of sleeping pills, Mr. Lynn’s psychiatric illness, and his admission to the paramedics that he took a large dose of sleeping pills, the coroner concluded that Mr. Lynn’s death was a suicide. According to the coroner, Mr. Lynn overdosing on sleeping pills lead to bronchopneumonia.⁵ He had a history of psychiatric illness. Since the role and core expertise of a coroner is to determine the cause of death, I prefer to rely on the coroner’s report which gave the cause of death as suicide.

Parties Positions

According to Ms. Lafontaine: (a) Mr. Lynn committed suicide by taking sleeping pills and he died one week after the accident; (b) Mr. Lynn’s suicide and death were directly caused by the car accident.

According to State Farm, there is no evidence that links Mr. Lynn’s suicide with the car accident.

Law

“Accident” is defined in s. 3(1) of the Schedule as:

“incident in which the use or operation of an automobile directly causes an impairment …”

Death benefits are payable under s. 26(2)1.i. of the Schedule to an insured’s spouse in the amount of $25,000 if the insured person dies “as a result of an accident.”

The burden of proof that Mr. Lynn overdosed on sleeping pills and died as a result of the accident is on Ms. Lafontaine.

The Schedule’s definition of “accident” requires answers to the two questions:

(1) Did the incident arise out of the use or operation of an automobile?⁶ Stated differently, did the incident result from the ordinary and well-known activities to which automobiles are put? This is also known as the “purpose” test in Amos.⁷

(2) Did such use or operation of an automobile directly cause the impairment.⁸ Ms. Lafontaine must demonstrate that the use of the vehicle or its operation directly caused Mr. Lynn’s impairment, specifically, his death.

According to the Applicant, the Amos, Greenhalgh and Chisholm tests are not relevant to this case. Rather, what is relevant is ING Insurance Company of Canada and Sohi⁹ which was a case in which Mr. Sohi tried to commit suicide three weeks after an accident. Sohi was “about the secondary or downstream consequences of an automobile accident”.¹⁰

EVIDENCE AND ANALYSIS:

Ms. Lafontaine’s position is sympathetic. She lost her spouse as a result of him committing suicide by overdosing on sleeping pills. However, State Farm is not responsible for paying Ms. Lafontaine death benefits unless Mr. Lynn died as a result of an “accident,” as defined in the Schedule.

The question that I must answer in order to resolve the issue raised in this application is: Has the Applicant proven, on a balance of probabilities, that the use or operation of Mr. Lynn’s car directly caused Mr. Lynn’s suicide and subsequent death on June 21, 2014?

When Mr. Lynn’s car rear-ended another car on of June 14, 2014, that was an “accident.” The question is whether Mr. Lynn’s death was a "direct” result of the accident of June 14, 2014. The current Schedule narrowed the scope of coverage to incidents caused “directly” by the use or operation of an automobile.¹¹ The requirement that the incident is “directly” caused by the use or operation of the automobile means that the causation test in Amos¹² is no longer applicable to cases under the current Schedule. There must be some nexus between Mr. Lynn’s rear-end collision, his suicide and death.

I make the following findings of fact, based on the oral and written evidence before me:

Ms. Lafontaine lived with Mr. Lynn, her common-law spouse, at the time of the accident.¹³ He was 65 years old at the time of the accident. On the day of the accident, Mr. Lynn was driving Ms. Lafontaine’s car. Mr. Lynn called her in the afternoon and said he was in an accident, the police were at the accident scene and gave him a breathalyzer test although he had not been drinking alcohol.

Mr. Lynn was an alcoholic and had previously been convicted of driving while intoxicated. Consequently, a breathalyzer was installed in Ms. Lafontaine’s car. Mr. Lynn had surgery to his shoulder in April 2014, as a result of which his family doctor, Dr. Phipps, prescribed him sleeping pills, which he was supposed to take two of per day.

Mr. Lynn’s car was towed from the accident scene to a repair shop and he was given a ride home by the tow truck driver. When Mr. Lynn returned home, he asked Ms. Lafontaine that someone get him a 12-pack of beer. He did not get any beer and lay down on the couch and went to sleep.

Throughout the remainder of the afternoon and evening, Ms. Lafontaine called Mr. Lynn several times but he would not answer. She helped him to the washroom at 1:00 a.m. She then went to bed and checked on him at night but he did not answer her.

Ms. Lafontaine made coffee the next morning at 9 a.m. when Mr. Lynn still wasn’t answering her calls and in the afternoon, Ms. Lafontaine called the paramedics¹⁴ who came to their apartment. Mr. Lynn told the paramedics he took 93 sleeping pills. The paramedics took Mr. Lynn to the hospital.

Ms. Lafontaine thought it was impossible for Mr. Lynn to take 93 sleeping pills because she refilled the prescriptions at the pharmacy and thought he only had a few sleeping pills left. However, the prescription summary¹⁵ indicates that Mr. Lynn’s prescription for 186 sleeping pills was refilled approximately three weeks before this accident.

1. Purpose Test:

Did the incident result from the ordinary and well-known activities to which automobiles are put? Based on the facts and evidence in this case, Mr. Lynn committed suicide by taking a large dose of sleeping pills. There is simply no evidence that Mr. Lynn did this as a result of rear-ending another vehicle.

2. Direct Cause Test:

The Applicant submitted that Mr. Lynn’s suicide was directly caused by the accident. There are three bases under which the causation could be met: (a) the "but for" test; (b) an intervening act; (c) and the dominant feature inquiry.¹⁶

(a) But For Test:

There is no evidence in this case that “but for” the accident, Mr. Lynn would not have overdosed on sleeping pills.

(b) Intervening Act:

An intervening event will relieve an insurer of liability if it is not considered a normal incident of the risk created by the use or operation of the car.¹⁷

The intervening events in this case following the accident are: (a) Mr. Lynn telephoning his wife following the accident; (b) the police administering the breathalyzer test following the accident; (c) Mr. Lynn trying to take his car to two mechanics and then going home; (d) Mr. Lynn sleeping following the accident; (e) Mr. Lynn overdosing on sleeping pills.

Mr. Lynn’s use of his car ended without injury and he had physically left the car. “No automobile contributed physically” to Mr. Lynn’s injuries, and there was a “temporal distance between the end of the use of the car”¹⁸ and Mr. Lynn’s suicide.

Therefore, the use or operation of Mr. Lynn’s car is not a direct cause of his death.

(c) Dominant Feature Inquiry:

The Court in Greenhalgh stated that "in some cases it may be useful to ask if the use or operation of the automobile was the dominant feature of the accident; if not, the link between the use and operation and the impairment may be too remote to be called 'direct.'"¹⁹

I have no evidence that Mr. Lynn’s use or operation of Ms. Lafontaine’s vehicle was the dominant feature (or any feature) of him overdosing on sleeping pills. Consequently, the link between the use and operation of Ms. Lafontaine’s car and Mr. Lynn’s suicide and death are too remote to be called “direct.”

Sohi

Sohi is distinguishable from this case because in Sohi, two psychologists linked Mr. Sohi’s suicide attempt to the accident.²⁰ However, in this case, there is no evidence before me that indicates Mr. Lynn committed suicide because of the car accident.

Conclusion

What is relevant is what caused Mr. Lynn’s death. In my view, Mr. Lynn’s death was caused by him overdosing on sleeping pills. There is no evidence that Mr. Lynn overdosed on sleeping pills because of the accident. I do not find that the accident was a direct cause of Mr. Lynn overdosing on sleeping pills.

Based on the facts and evidence in this case, there is no connection between the use or operation of the car Mr. Lynn was driving and him overdosing on sleeping pills either the day of the accident or the day after the accident. Therefore the incident is not an “accident” within the meaning of section 2 of the Schedule.

Issue Two: Is Ms. Lafontaine entitled to a death benefit, in the amount of $25,000.00, in relation to the death of her spouse, Mr. Paul Lynn pursuant to subsection 26(2)1.i. of the Schedule?

The benefits set out in the Schedule are payable for “accidents.”²¹ Because Mr. Lynn’s suicide was not caused by the “accident” as defined in section 3 of the Schedule, State Farm is not required to pay Ms. Lafontaine death benefits pursuant to s. 26(2)1.i. of the Schedule.

I find that Mr. Lynn overdosed on sleeping pills and died because of the overdose.

EXPENSES:

With respect to the issue of the expenses of this proceeding, if the parties are unable to resolve this issue on their own, either party may, within 30 days, make a written request for me to determine the matter in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.

May 24, 2017

Maggy Murray Arbitrator

Date

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

Neutral Citation: 2017 ONFSCDRS 147

FSCO A15-008640

BETWEEN:

BEULAH LAFONTAINE

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 it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

1. Mr. Lynn's suicide and subsequent death was not "as a result of an accident" as defined by s. 3(1) of The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as it read immediately prior to April 1, 2016.

2. State Farm is not required to pay Ms. Lafontaine death benefits pursuant to subsection 26(2)1.i of the Schedule.

3. With respect to the issue of the expenses of this proceeding, if the parties are unable to resolve this issue on their own, either party may, within 30 days, make a written request for me to determine the matter in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.

May 24, 2017

Maggy Murray Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Exhibit 1, Tab 2 at p. 4 of Coroner’s Investigation Statement
3. 3Exhibit 1, Tab 1, Emergency Record. According to the Ambulance Call Report in Exhibit 2, Tab 19 at 1, Mr. Lynn initially told the paramedics he took 93 sleeping pills but later said he took 100 sleeping pills.
4. 4Exhibit 2, Tab 12, at p. 92. Sepsis that complicates a urinary tract infection.
5. 5Exhibit 1,Tab 2, at p. 4 of Coroner’s Investigation Statement. Bronchopneumonia is a type of pneumonia.
6. 6Greenhalgh v. ING Halifax Insurance Co. (2004), 2004 CanLII 21045 (ON CA), 72 O.R. 3d 338, QL at para. 10 (Ont. C.A.)
7. 7Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405, QL at 5, para. 10
8. 8Greenhalgh v. ING Halifax Insurance Co. (2004), 2004 CanLII 21045 (ON CA), 72 O.R. 3d 338, QL at para. 10 (Ont. C.A.)
9. 9(FSCO P04-00026, May 5, 2005)
10. 10QL at para. 23
11. 11Saharkhiz v. Underwriters, Members of Lloyd’s, London, England, QL at para. 8 (1999), 1999 CanLII 15099 (ON SC), 46 O.R. (3d) 154 (Ont. S.C.) aff’d on appeal (2000), 2000 CanLII 5719 (ON CA), 49 O.R. (3d) 255 (Ont. C.A.)
12. 12Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405 as cited in Chisholm v. Liberty Mutual Group (2002), 2002 CanLII 45020 (ON CA), 60 O.R. (3d) 776, QL at 7, para. 20 (Ont. C.A.); Karshe and Non-Marine Underwriters, Mbrs. of Lloyd’s, at 7 (FSCO A99-000855, December 15, 2000); Petrosoniak and Security National Insurance Company at 5 (FSCO A98-000198, November 2, 1998); Kumar and Coachman Insurance Co., QL at para. 66 (FSCO P01-00026, August 9, 2002), 2004 CanLII 11702 (ON SCDC), [2004] O.J. No. 2494, at 3, para. 10 (Ont. Div.Ct.), leave to appeal to the Ont. C.A. and S.C.C. dismissed; Greenhalgh v. ING Halifax Insurance Co. (2004), 2004 CanLII 21045 (ON CA), 72 O.R. 3d 338, QL at para. 31 (Ont. C.A.)
13. 13Exhibit 1, Tab 2, Coroner’s report dated November 12, 2014 at 1
14. 14Exhibit 1, Tab 2, at p. 4 of fax of Coroner’s Investigation Statement
15. 15Exhibit 2, Tab 14 at p. 345
16. 16Greenhalgh v. ING Halifax Insurance Co. (2004), 2004 CanLII 21045 (ON CA), 72 O.R. 3d 338, QL at para.’s 36-49 (Ont. C.A.)
17. 17Greenhalgh v. ING Halifax Insurance Co. (2004), 2004 CanLII 21045 (ON CA), 72 O.R. 3d 338, QL at para. 38 (Ont. C.A.)
18. 18Greenhalgh v. ING Halifax Insurance Co. (2004), 2004 CanLII 21045 (ON CA), 72 O.R. 3d 338, QL at para. 44 (Ont. C.A.)
19. 19Greenhalgh v. ING Halifax Insurance Co. (2004), 2004 CanLII 21045 (ON CA), 72 O.R. 3d 338, QL at para. 47 (Ont. C.A.)
20. 20QL at 29 (FSCO A03-001125, July 15, 2004)
21. 21Section 3 of the Schedule