Citation: Bronstein v. Intact Insurance, 2024 ONLAT 22-008888/AABS-PI
Licence Appeal Tribunal File Number: 22-008888/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Ella Bronstein
Applicant
and
Intact Insurance
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
A. Fabio Longo, Counsel
William A. G. Simpson, Counsel
For the Respondent:
Douglas A. Wallace, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Ella Bronstein (“the Applicant”) was involved in an incident on September 13, 2017 and sought benefits from Intact Insurance (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“the Schedule”). The Applicant was denied benefits by the Respondent and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is whether the Applicant was involved in an “accident” as defined in section 3(1) of the Schedule.
RESULT
3The Applicant was not involved in an “accident” as defined in section 3(1) of the Schedule.
ANALYSIS
Background
4The Applicant was injured when a wall from a prefabricated modular building fell on her as it was being loaded onto a detached flatbed trailer by a mobile crane. She sustained serious injuries including multiple spinal cord injuries that required emergency surgery, and temporarily paralyzed her and caused her to be hospitalized for two weeks.
5The Respondent is the insurer of the mobile crane and contends that the mobile crane is exempt from coverage under the Schedule by operation of an OPCF-30 and is covered under a separate, commercial general liability, policy. It submits that the OPCF-30 removes liability and accident benefit coverage for loss or damage resulting from the ownership, use or operation of any machinery or apparatus, including its equipment, mounted on or attached to the automobile while such automobile is at the site of the use or operation of that machinery or apparatus. To the Respondent, the crane mechanism is the machinery or apparatus that is excluded from coverage pursuant to the Schedule.
6No insurance coverage flows from the trailer the Applicant was standing on because it was not attached to a vehicle.
7The mobile crane was not motoring at the time of the incident. It was situated on outriggers with the boom extended. The Applicant is entitled to insurance coverage if she can demonstrate that the mobile crane is covered by an automobile insurance policy and if the incident meets the definition of an accident, as outlined in the Schedule. The Respondent holds the onus in demonstrating that the mobile crane is exclude by operation of an OPCF-30.
Is the crane excluded by operation of an OPCF-30?
8I find no applicable OPCF-30 to exclude injuries arising from the operation of the crane.
9The OPCF-30 is the document which serves to confirm whether section 248 of the Insurance Act is engaged as it relates to an automobile insurance policy. Section 248 of the Insurance Act provides that insurers may exclude liability for loss or damage from the ownership, use or operation of any machinery or apparatus, including equipment mounted to the automobile, while such automobile is at the site of the use or operation of that machinery or apparatus.
10I find that the OPCF-30 in evidence is not applicable, therefore it does not confirm that the crane is excluded from the automobile insurance policy. The OPCF-30 before me is a blank form, rendering it meaningless, and the Respondent has not produced a completed OPCF-30. The certificate of automobile insurance, dated September 22, 2016, is unclear as to whether the crane is excluded from coverage. The document mentions excluding operation-attached machinery and a boom, but it does not expressly state that the operation of the attached machinery is excluded from the automobile insurance policy. No OPCF-30 is included in the automobile insurance policy before me. I am unable to find on a balance of probabilities that the owner of the crane and the Respondent agreed to exclude the crane equipment from the automobile insurance policy based on this evidence. The ambiguity surrounding the coverage of the attached machinery is the reason why an executed OPCF-30 should be included in the automobile insurance policy.
Did the parties otherwise agree to amend the contract?
11An unsigned OPCF-30 does not automatically negate the Respondent’s position. Gore Mututal Insurance Co. v. 1443249 Ontario Ltd,, 2004 canLII 43772 (ON CA) (“Gore”), holds the position that in absence of signatures on the document, the insurer bears the onus of satisfying the court that the insured agreed to amend the automobile insurance policy to exclude coverage. In Gore the dispute involved an excluded driver waiver, which excludes coverage for certain drivers – similar to this matter where the Respondent submits that liability coverage for the crane in operation is excluded from the automobile insurance policy.
12I find that the Respondent has demonstrated that the parties to the automobile insurance policy otherwise agreed to amend the contract of auto insurance, excluding the mobile crane from coverage when it is being used as a crane.
13The affidavit of Cornelis Wuis, sworn July 10, 2023, is evidence that the parties to the automobile insurance policy otherwise agreed to amend the contract of auto insurance. Cornelis Wuis is the President of the company which owned the mobile crane involved in the incident. His affidavit is uncontested and none of the submissions or evidence before me cause me to conclude that his sworn statement is inaccurate in any way. In the affidavit, Mr. Wuis stated that he understood that the crane, when in use separate from being used as an automobile, held other coverage through a commercial general liability policy. Nothing before me, be it the evidence or the submissions, causes me to conclude that Mr. Wuis’ affidavit is inaccurate.
14The existence of the commercial general liability policy supports Cornelis Wuis’ understanding and confirms that there is alternate coverage and/or an exclusion for the operation of the crane. The evidence shows that the owner of the mobile crane also held a “contractors edge plus policy” which included commercial general liability coverage, for the use and operation of the crane. I find it improbable that the company would buy a policy with commercial general liability coverage if the mobile crane was insured through the auto insurance policy while it was being used as a crane.
15My findings above are not upset by the issues pertaining to the production of an executed OPCF-30. Indeed, it is concerning that it was more than a year after the initial denial that the Respondent advised the Applicant of the existence of an OPCF-30, excluding coverage for the operation of the crane. I suspect that the delay is because the Respondent concluded that the incident was a workplace accident, and never considered whether it was an accident. Further, the application of Gore provides the Respondent with an alternative means of demonstrating that an exclusion exists despite the absence of an OPCF-30. Though, I disagree with the Respondent that it would be impractical to require a completed OPCF-30 for each of the seven vehicles subject to the auto insurance policy exclusion. The OPCF-30 is a single-page standard document and is not onerous to complete and provides clear boundaries for coverage. While I agree that a fleet of vehicles may become large enough that completing forms for each would be impractical, I find it is not the case for a fleet of seven vehicles.
Was the incident an “accident” | Did the Applicant notify the Respondent of the incident in accordance with the Schedule?
16Having determined that the mobile crane is excluded from the automobile insurance policy, it follows that incidents involving the operation of the mobile crane are not covered by the automobile insurance policy. Accordingly, an analysis of whether the incident meets the definition of an accident is unnecessary. Likewise, an analysis on whether the Applicant notified the Respondent of the circumstances giving rise to her claim is unnecessary because no accident benefits coverage flows from the mobile crane.
CONCLUSION AND ORDER
17The crane involved in the incident was not covered by an automobile insurance policy while it was being used as a crane to lift and move objects. Accordingly, I find that the Applicant was not involved in an “accident” as defined in section 3(1) of the Schedule.
18The application is dismissed.
Released: December 6, 2024
___________________________
Brian Norris
Adjudicator