December 05, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: November 3, 2015
Heard Before: Adjudicator Marvin Huberman
DECISION ON A PRELIMINARY ISSUE
Ms. Bich Mai Tran and Ms. (Thi) Tien Vu, claimed that they were hurt in a car accident on August 20, 2011. They applied for statutory accident benefits from State Farm, but when State Farm denied their claims for accident benefits on the grounds that they were not injured in an “accident”, and the parties were unable to resolve their dispute through mediation Ms. Tran and Ms. Vu applied for arbitration at the FSCO. With the consent of all parties the Applications for Arbitration would be heard one immediately after the other by the same Arbitrator.
The issue in this Preliminary Issue Hearing is:
Were Ms. Tran and Ms. Vu involved in an “accident” as defined in the Schedule?
Ms. Tran and Ms. Vu were not involved in an “accident” as defined in the Schedule.Their Applications for Arbitration are dismissed with costs to State Farm.
The Arbitrator reviewed the evidence and the law. He determined that the Schedule defines “accident” to mean “an incident in which the use or operation of an automobile directly causes an impairment”, and that the definition has two components: (1) there must be an incident involving the use or operation of an automobile; and (2) the use or operation of an automobile must directly cause an “impairment”. The burden of proof rests with Ms. Tran and Ms. Vu to prove on the balance of probabilities that there was an accident within the meaning of the Schedule. An Arbitrator does not have to find that the Applicant was involved in a fraud to find that there was no “accident”.
Ms. Tran and Ms. Vu testified on their own behalves, through Vietnamese interpreters. State Farm called Mr. SK to testify as an expert in motor vehicle accident reconstruction and engineering.
Relying primarily on their own testimony and on the Self Reporting Collision Reports, Ms. Tran and Ms. Vu submit that they were involved in a motor vehicle accident on August 20, 2011. Ms. Tran, was the seat-belted driver of a minivan, traveling southbound on Highway 56 in the Niagara Region with her friend Ms. Vu, as her passenger. Ms. Tran was passing a side street, when all of a sudden, an unidentified third-party vehicle came out of that side street and turned left to go southbound onto Highway 56, subsequently striking the driver’s side of Ms. Tran’s minivan. The impact caused Ms. Tran to swerve to the right side of Highway 56, where the vehicle came to a complete stop after it went into the ditch on the side of the road. The third-
party vehicle fled the scene. The accident was reported to the police at the collision reporting centre.
Ms. Tran and Ms. Vu contend that they reported the accident exactly as it happened, and didn’t wilfully misrepresent the accident, and that they reported the same facts about the accident and how it happened. Ms. Tran and Ms. Vu argue that any minor inconsistencies are simply due to faded memories which is common. They claim the expert evidence of State Farm is flawed as it was suspicious and took 15 months to complete, and that it was tailored to justify State Farm’s conclusion that no accident happened. They claim State Farm does not want to pay benefits and that State Farm’s allegations are unfounded. They also claim State Farm did not act in good faith when they waited a year and three months to deny the claims.
State Farm submits that the issue to be determined in this Preliminary Issue Hearing is whether Ms. Tran and Ms. Vu were injured as a result of an “accident”. They claim Ms. Tran and Ms. Vu failed to meet the burden of proof and:
Their evidence is inconsistent and lacks credibility;
The suspicious circumstances surrounding the alleged accident;
The expert opinion of the Accident Reconstruction Engineer determined the accident could not have occurred as described by Ms. Tran and Ms. Vu; and
The absence of any expert report responding to the conclusion of the expert.
The Arbitrator assessed Mr. Tran and Ms. Vu’s credibility, demeanour, ability and opportunity to observe, power of recollection, interest, bias, prejudice, sincerity, inconsistency, and the reasonableness of their testimony. The Arbitrator found that Ms. Tran and Ms. Vu’ evidence not credible and unreliable. It is not convincing and lacks harmony with the preponderance of the probabilities disclosed by the facts and circumstances of the present case. He further found their evidence is vague, evasive, and internally inconsistent and their explanations are not reasonable or convincing in the circumstances disclosed in the evidence.
The Arbitrator reviewed the expert testimony regarding the accident reconstruction which he preferred. His expert qualifications and evidence was impressive and factual, satisfying the appropriate standard of proof. The evidence concluded it was not possible for the damage to the car to have occurred as Ms. Tran and Ms. Vu claim.
On this basis the Arbitrator was of the view that Ms. Tran and Ms. Vu were not involved in an “accident” as defined in section 3(1) of the Schedule. Their Applications for Arbitration are therefore dismissed with costs to State Farm.