CITATION: Falvo v. Allstate Insurance Company of Canada, 2009 ONCA 334
DATE: 20090427
DOCKET: C49180
COURT OF APPEAL FOR ONTARIO
Doherty, Cronk and Rouleau JJ.A.
BETWEEN:
Frank Falvo
Plaintiff (Respondent)
and
Allstate Insurance Company of Canada, World Wide Mediclaim Services Ltd. and North American Air Travel Insurance Agents Ltd. doing business as Travel Underwriters
Defendants (Appellants)
Brian Babcock for the defendants (appellants)
Walter Wieckowski for the plaintiff (respondent)
Heard & released orally: April 15, 2009
On appeal from the judgment of Justice H.M. Pierce of the Superior Court of Justice dated June 26, 2008.
ENDORSEMENT
[1] The appellants appeal Pierce J.’s judgment ordering Allstate to pay the respondent $53,765.04 US pursuant to a travel insurance policy. The appellants submit that the trial judge erred in four respects:
in her interpretation of the exclusionary clause in the policy for a pre-existing condition;
in concluding that the stress test undergone by the respondent was not a medical consultation within the meaning of the policy.
in finding that the respondent returned to Canada on February 24, 2004, within 14 days of departure; and
in refusing to allow the appellants to call evidence with respect to the limitation period applicable to the Florida Hospital’s claim against the respondent and the respondent’s mitigation obligations.
[2] In our view, the appeal should be dismissed.
[3] Even if we were to agree with the appellants’ submission that the trial judge erred in her interpretation of the exclusionary clause for a pre-existing condition, she nonetheless reached the correct result. The relevant portions of the exclusionary clause read as follows:
In addition to the General Exclusions shown on page 18, this Insurance does not provide payment for indemnity for expenses incurred directly or indirectly as a result of:
Any Pre-existing Condition as defined on page 25 except as follows:
Applicable to persons 60 to 69 years
a) on trips 15 days or less;
b) on trips over 15 days, any condition which has remained Stable in the 180 days prior to the commencement date of a covered trip.
[4] “Pre-existing condition” is defined as follows:
… a medical condition, illness or Injury known to the Insured Person, and for which an Insured Person has received medical consultation, diagnosis, and/or Medical Treatment by a Physician prior to the commencement date of a covered trip and includes a medically recognized complication or Recurrence of a medical condition.
[5] “Stable” is defined as follows:
“Stable” means the medical condition is not worsening and there has been no alteration in any medication for the condition or its usage or dosage, nor any Medical Treatment prescribed or recommended by a Physician or received, within the period specified in this Policy before the commencement date of a covered trip.
[6] When he purchased the insurance, the respondent indicated that the trip was to last 28 plus 7 days and he paid the appropriate premium. Because the illness occurred toward the beginning of the trip, the respondent cut his trip short and returned within either 14 or 16 days of departure, depending on one’s interpretation of the evidence. The trial judge concluded that the exclusionary clause did not apply because the trip only lasted 14 days and the trip length provision in the exclusionary clause should be interpreted to mean the actual length of the trip rather than the length of the trip as planned and contracted for.
[7] We have assumed without deciding that trip length, for the purpose of the exclusionary clause, is determined by reference to the trip length stipulated in the policy (i.e. 28 days plus 7) and that therefore the exclusion did apply to the respondent. Making that assumption, on the facts of this case, we find that the appellants did not meet their onus to show that the exclusionary clause was triggered.
[8] The respondent suffered from hypertension. In the weeks prior to his departure he was placed on a third medication for this condition and the dosage of one of the medications he was taking at the time was increased. However, as indicated in the hospital records filed in evidence, the respondent did not have a history of coronary artery disease. The appellants led no evidence to establish that the respondent’s angioplasty procedure undergone in Florida was “incurred directly or indirectly” as a result of the respondent’s pre-existing hypertension. Absent such evidence, the exclusionary clause did not provide a basis for the appellants’ denial of the claim.
[9] We see no basis to set aside the trial judge’s finding that, on the facts of this case, the stress test undergone by the respondent was not a “medical consultation” received for a medical condition known by him. The cardiologist who monitored the test testified that he did not regard the procedure as a consultation. The respondent received the results of the stress test before his departure and they disclosed no abnormality.
[10] In light of our conclusion with respect to the trip length provision in the exclusionary clause, we need not deal with the appellants’ submission that the trial judge erred in her factual determination that the respondent returned to Canada within 14 days of departure.
[11] Finally, the trial judge’s refusal to allow the appellants to call evidence respecting mitigation and Florida law is a discretionary ruling and we see no basis for interfering with it. As noted by the trial judge, the evidence sought to be adduced had no relevance based on the pleadings and the appellants had not served a motion to amend their pleading. The appellants had been aware of the issues of mitigation and the limitation period but failed to plead them. If an amendment had been allowed at that stage of the trial, expert’s reports on Florida law would have been required and the respondent would inevitably have been prejudiced and delays and further expenses would have been incurred.
[12] As a result, the appeal is dismissed. Costs to the respondent on a partial indemnity basis fixed at $9,000, inclusive of GST and disbursements.
“D. Doherty J.A.”
“E.A. Cronk J.A.”
“Paul Rouleau J.A.”