Insured not involved in staged car accident.
January 25, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: November 24, 2014
Heard Before: Adjudicator Jessica Kowalski
REASONS FOR DECISION on a PRELIMINARY ISSUE
This hearing was for the purpose of determining whether an accident occurred within the meaning of the Schedule, and whether the applicants willfully misrepresented material facts with respect to the accident and therefore their applications for accident benefits.
The question is whether this was a deliberate collision in which the applicants’ minivan struck a Honda Civic with the assistance of a third vehicle that left the scene.
The applicants were involved in an accident as defined by the Schedule and may proceed with their respective applications for arbitration. The facts of this case are unusual. The parties agree on very little. With respect to material facts, they agree that:
The applicants were in a Toyota Sienna minivan
A Honda Civic, driven by Katy Lee-Law was waiting to turn left into the gas station at the corner
An unidentified dark sedan was in the westbound curb lane
The collision occurred after 10:00 p.m. on October 12, 2010
The driver of the Honda Civic was making a left hand turn and was struck by the minivan driven by Mr. Balasubramanian. The parties involved in the accident offer completely opposed and incompatible versions of what happened. Mr. Balasubramanian has a checkered history of insurance claims and the history of the vehicle that he was driving was questionable as it had been previously written off by another insurance company. Given these facts and according to the Adjudicator, a somewhat prejudicial police report, and an upsurge in insurance fraud cases, TD chose to investigate the accident and TD asserts it was a staged accident.
Upon careful review of the facts of the accident, the inconsistent testimony of the driver of the Honda Civic, the prejudicial police report, and the testimony of Mr. Balasubramanian, the Adjudicator preferred the applicants’ version of events. The police officer acknowledged that he applied “criminal profiling”.
On a balance of probabilities, on all of the evidence before him, the Adjudicator found that the driver of the Honda Civic simply made a bad left hand turn. The fact that Mr. Balasubramaniam hit her as a result and where, by expert evidence, he had time to stop and avoid her car is not evidence of a planned and deliberate accident but, on balance, errors on the part of both drivers. The Arbitrator considered the engineering report to be compromised as it relied on inconsistent evidence from the driver of the Honda Civic. The Arbitrator found nothing nefarious in the evidence before him to persuade him otherwise. Accordingly, the Arbitrator found the applicants were involved in an accident within the meaning of the Schedule and may proceed with their applications for arbitration.
|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.