Insured's claim about car accident not supported by evidence.
February 22, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Alec Fadel,
Date of Decision: January 2, 2014
DECISION ON A PRELIMINARY ISSUE
Mr. Yury Paperny allegedly was injured in a car accident on January 17, 2010. He applied for statutory accident benefits from State Farm. The parties were unable to resolve their disputes through mediation, and Mr. Paperny applied for arbitration at the FSCO. At the pre-hearing State Farm raised the preliminary issue that Mr. Paperny was not involved in a car accident.
Mr. Paperny alleged that he was in the backseat of a BMW when it was hit perpendicularly at an intersection by a car that failed to stop at a stop sign. State Farm relied on expert evidence in an accident reconstruction report which showed conclusively that the vehicles never came in contact with one another.
The Arbitrator found that the Mr. Paperny failed to prove on the balance of probabilities that he was involved in a car accident.
The Preliminary Issue:
Was Mr. Paperny involved in an “accident” as defined in the Schedule?
Did Mr. Paperny wilfully misrepresent material facts with respect to an application for a benefit?
Mr. Paperny was not involved in an accident as defined by the Schedule.
Mr. Paperny wilfully misrepresented material facts with respect to his application for accident benefits.
Mr. Paperny bore the onus of proving he had been in a car accident. He provided no significant evidence beyond his own testimony, nor did he call witnesses. His testimony was that he was being driven to a club by a friend when the car was hit by a Nissan that disobeyed a stop sign. He was wearing a seat belt. He called a friend to pick him up but could not remember who that was, nor many other details of the evening including the road he was on, who called the police, and the weather conditions. He wasn’t driving because he’d been drinking.
The Arbitrator found the expert evidence provided by State Farm as overwhelmingly convincing. The damage to the cars was not consistent with the BMW being hit by the other vehicle. There were other inconsistencies with evidence presented including reports from the driver and the police report about road conditions, speed of the car, actions of the driver, and the actions of the other people in the car following the accident.
|Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Fractures
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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.
It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.