Marek v. RBC Life Insurance Co.

90 O.R. (3d) 628

Court of Appeal for Ontario,

Rosenberg, Lang and Epstein JJ.A.

May 14, 2008

Insurance -- Accident insurance -- Interpretation -- "Loss of use" -- Insured's foot immobilized at 15 degree angle and non- weight-bearing for most purposes -- Trial judge not erring in finding that insured suffered "loss of use" of his foot -- Trial judge not erring in interpreting [page629] "loss of use" in context of insurance contract rather than on basis of American Medical Association Guidelines.

The insured's foot was immobilized at a 15 degree angle and was non-weight-bearing for most purposes. The insurer appealed the trial judge's finding that the insured suffered "loss of use" of his foot, entitling him to coverage under his accident insurance policy.

Held, the appeal should be dismissed.

The trial judge correctly interpreted "loss of use" in the context of the insurance contract rather than on the basis of the American Medical Association Guidelines. He did not err in concluding that the insured lost total functional or practical use of his foot.

APPEAL by insurer from a judgment of Thomson J. (2007), 2007 ON SC 20111, 86 O.R. (3d) 127, [2007] O.J. No. 2154 (S.C.J.), for insured.

Authorities referred to American Medical Association, Guides to the Evaluation of Permanent Impairment, 4th ed. (Chicago: American Medical Association, 1993)

Luke C. Mullin, for appellant. John A. Tamming, for respondent.

[1] Endorsement BY THE COURT: -- The insurer appeals the trial judge's finding that the respondent suffered "loss of use" of his foot, thereby entitling him to coverage under his accident insurance policy. The main focus at trial was the applicability of the American Medical Association Guidelines, which, from a medical perspective, provided that a loss of use requires that a foot could also "not provide a stable base for standing". In our view, the trial judge correctly interpreted "loss of use" in the context of the insurance contract rather than on the basis of the American Guidelines, particularly since the insurance contract made no reference to the American Guidelines, which the expert witness described as "obtuse and complex and not all that helpful". Accordingly, the trial judge acted properly in finding that the Guidelines were not determinative of the correct legal interpretation.

[2] The definition of loss of use with respect to the requirement of nerve damage is very poorly worded and is ambiguous about whether nerve damage is a requirement. Bearing in mind the rules of interpretation of an insurance policy where there is an ambiguity, we think the more reasonable interpretation is that if the loss of use is nerve related, such loss must be permanent. It cannot be that recovery is dependent on nerve damage.

[3] We see no error in the trial judge's conclusion that the respondent lost total functional or practical use of his foot, [page630] which is immobilized at a 15 degree angle and is non-weight bearing for most normal purposes. He cannot use it to work as a truck driver, to walk normally, or for a myriad of routine purposes. In addition, the evidence established that the use of a cane does not serve to restore the respondent's use of his foot. Accordingly, we see no basis to interfere with the findings of the trial judge.

[4] The appeal is dismissed. Costs to the respondent in the agreed-upon amount of $10,000, inclusive of disbursements and GST.

Appeal dismissed.