Tribunal File Number: 17-000608/AABS
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
D.G.
Applicant
and
TD Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Robert Watt
APPEARANCES:
Counsel for the Applicant: William Goldstein
Counsel for the Respondent: Paul J. Barnes
HEARD: Written Hearing: June 29, 2017
OVERVIEW
1The applicant was injured in an automobile accident on May 25, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2The applicant filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). A case conference in this case was held on April 3, 2017. The applicant is an Ontario resident who was involved in an automobile accident while travelling in Michigan. The Insurance Act and associated regulations provide an applicant with the choice of jurisdiction in which he or she can make a claim. With the consent of both parties, a written hearing was scheduled on June 29, 2017 to address the issues in dispute.
ISSUES AS NOTED IN THE CASE CONFERENCE HEARING
3Is the applicant entitled to, as per the election made under Section 59 of the Schedule for accidents outside of Ontario, no fault benefits at the Michigan Personal Injury Protection Level (“PIP”) in respect of the injuries arising out of a motor vehicle accident on May 25, 2015 in the state of Michigan (USA)?
4Is the applicant entitled to a denied medical benefit in the amount of $2,372.64 for physiotherapy treatment submitted by Lake Superior Physiotherapy pursuant to a Treatment and Assessment Plan (OCF18) dated March 31, 2016?
5Is the applicant entitled to a denied medical benefit in the amount of USD $51,464.48 for treatment provided at [a hospital] pursuant to OCF6 dated December 7, 2016?
6Is the applicant entitled to interest on overdue payment of benefits?
RESULT
7The applicant is only entitled to SABS benefits at the Ontario benefit levels and not at the Michigan Personal Injury Protection Level. Since the respondent has paid to the applicant the maximum medical and rehabilitation benefits under the SABS, this application is dismissed.
LAW
Ontario Law
8Sections 243 and268 of Ontario’s Insurance Act state that statutory accident benefits apply to the use and operation of any automobile in Canada and in the United States of America, and in any other jurisdiction designated in the SABS.
9Section 2(3) of the Schedule states that the benefits shall be provided in respect of accidents that occur in Canada and in the United States.
10Section 59(1) of the Schedule applies “as a result of an accident in another province or territory of Canada or a jurisdiction in the United States of America, a person insured in that jurisdiction within the meaning of subsection (4) dies or sustains an impairment or incurs an expense described in sections 15, 16 or 19; and no benefits are received under the law of the jurisdiction in which the accident occurred.”
11Section 59(2)(2) of the Schedule allows an insured to elect to receive benefits according to Ontario’s SABS or elect benefits in the same amounts and subject to the same conditions as if the person was a resident of the jurisdiction in which the accident occurred and was entitled to payments under the law of that jurisdiction.
12Section 59(4) of the Schedule sets out the criteria that must be satisfied in order for an individual to be determined to be insured at the time of the collision, within the jurisdiction in which the collision occurred.
(a) The person was authorized by law to be or to remain in Canada and was living and ordinarily present in Ontario;
(b) The person met the criteria prescribed for recovery under the law of the jurisdiction in which the accident occurred;
(c) The person was not an owner, driver or occupant of an automobile registered in the jurisdiction in which the accident occurred; and
(d) The person,
(i) was an occupant of the insured automobile,
(ii) was the named insured, a person specified in the policy as a driver of the insured automobile, the spouse of the named insured or a dependant of the named insured or spouse and was an occupant of an automobile,
(iii) was the named insured, his or her spouse or a dependant of the named insured or spouse and was struck by an automobile while not an occupant of an automobile,
- RSO 1990, c I.8.
(iv) was struck by the insured automobile while not an occupant of an automobile,
(v) if the named insured is a corporation, unincorporated association, partnership or sole proprietorship, was a person for whose regular use the insured automobile was supplied, his or her spouse or a dependant of the person or spouse and suffered an impairment while being the occupant of an automobile or suffered an impairment caused by an automobile of which he or she was not an occupant, or
(vi) was struck by an automobile that was driven by a person described in subclause i, ii, or v.
13The courts have held that the SABS is to be interpreted in a broad and liberal way as remedial legislation.
Michigan Law
14The State of Michigan has a no fault accident benefit regime contained within Chapter 31 of the Insurance Code of 1956.
15Section 500.3105(1) states that a Michigan-based insurer is liable for personal protection benefits without regard to fault, and is liable to pay benefits for accidental bodily injury, arising out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle.
16Section 500.3163(1) and (2) allows for an out of state insurer, who is authorized to transact automobile liability insurance and personal and property protection insurance in Michigan, if that insurer files and maintains a written certification that any accidental bodily injury or property damage that is a result of a motor vehicle accident in Michigan involving an out of state resident who is insured under its automobile policy, to be subject to the personal injury and property protection insurance system under Michigan’s law.
17Section 500.3113(c) provides: “a person is not entitled to be paid personal protection insurance benefits for accidental bodily injury, if at the time of the accident, any of the following circumstances existed:
(c) The person was not a resident of this state, was an occupant of a motor vehicle or motorcycle not registered in this state and was not insured by an insurer which has filed a certification in compliance with section [500.]3163.
2 Bapoo v. Co-Operators General Insurance Co., 1996 CarswellOnt 4565 (Ont. Gen. Div.), at para. 9.
- Act 218 of 1956, MCL 500.3101 (Chapter 31: MOTOR VEHICLE PERSONAL AND PROPERTY PROTECTION).
EVIDENCE
18There is no dispute between the parties about the facts of the accident and the insurance coverage particulars. The dispute between the parties is over the interpretation of the law.
19The applicant is a Canadian citizen ordinarily residing in Ontario. The applicant was injured in a motor vehicle accident on May 25, 2015, in Michigan.
20At the time of the accident, the applicant was driving an automobile owned by his “spouse”, registered in Ontario. The vehicle was insured by Allstate Insurance Company (“Allstate Insurance”).
21The applicant had an Ontario automobile insurance policy with TD Home and Auto Insurance Company (“TD”) relating to his own car. TD was not a registered insurer under Michigan law 500.3163, as set out above.
22On June 14, 2015, the applicant elected to receive accident benefits from Allstate Insurance and TD, pursuant to Michigan’s accident benefits regime, rather than under the SABS.
23The applicant initially received accident benefits through Allstate Insurance, pursuant to Michigan’s accident benefit regime, until January 2016.
24On September 17, 2015, TD accepted priority with respect to the applicant’s accident benefits claim and assumed carriage of the applicant’s accident benefits file from Allstate Insurance in January 2016.
25Upon assuming carriage of the applicant’s accident benefits claim, TD informed the applicant that he was not entitled to receive benefits based on the Michigan accident benefit legislation, as TD was not a signatory to Michigan’s certification list.
26TD also denied any further medical ($51,464.48 USD) and rehabilitation expenses ($2,372.64 CAD) incurred by the applicant on the basis that the applicant had used the maximum monetary limits available for medical and rehabilitation expenses for non-catastrophic claimants under the Schedule ($50,000.00).
27The applicant now wants to receive benefits in accordance with Michigan’s accident benefits scheme. The respondent is denying the applicant’s right to receive benefits in accordance with Michigan’s accident benefits scheme.
ANALYSIS
28Sections 59(1)(a) and 59(4)(b) of the Schedule requires a person to be insured under the Michigan benefit regime that:
(1) (a) as a result of an accident……or a jurisdiction in the United States of America….. a person insured in that jurisdiction within the meaning of subsection (4)…”
(b) (4) (b) the person met the criteria prescribed for recovery under the law of the jurisdiction in which the accident occurred.
29The Applicant does not meet the Michigan criteria for recovery under Section 500.3113(c) because TD had not filed “a certificate in compliance with section 500.3163.” This means that the applicant has not met the requirements of sections 59(1)(a) and 59(4)(b) of the Schedule.
30The Michigan Court of Appeal has decided that MCL 3113(c) “precludes recovery if the out of state party was not insured by an insurer which has filed a certification in compliance with section 3163”. This same court has decided that “persons rather than vehicles are insured against loss”.
31Cases in Ontario have also found that “the principle behind the no-fault scheme is that the insured person looks first to his or her own insurance company, whether or not his or her vehicle is involved, since the coverage follows the person.”
ORDER
32I find that TD was not a signatory to Michigan’s no-fault certification list and therefore the applicant does not meet all of the criteria outlined in ss. 59(1)(a) and 59(4)(b) of the Schedule, and therefore does not qualify as an insured in Michigan for the purposes of electing Michigan PIP benefits.
33I find that since the applicant was insured by TD on the date of loss, that TD was automatically the highest priority insurer, entitling the applicant only to the limits of the Ontario SABS benefits.
34The application for benefits in accordance with the Michigan PIP scheme is dismissed. Interest will not be awarded.
Perkins v. Auto-Owners Ins. Co., 301 Mich. App. 658 (2013).
Allstate Insurance Company of Canada and Old Republic Insurance Company, (Ont. Arb. May 1997), Arbitrator the Hon. W. David Griffiths, Q.C.