IN THE MATTER OF THE INSURANCE ACT, R.S.O. 1990, c. I. 8 AS AMENDED AND ONT. REGULATION 283/95, AS AMENDED

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1 IN THE MATTER OF THE INSURANCE ACT, R.S.O. 1990, c. I. 8 AS AMENDED AND ONT. REGULATION 283/95, AS AMENDED AND IN THE MATTER OF THE ARBITRATION ACT, S.O. 1991, CHAPTER 17, AS AMENDED AND IN THE MATTER OF AN ARBITRATION B E T W E E N : PILOT INSURANCE COMPANY Applicant -and- STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Respondent AWARD Robert H.C. Barrett, Esq. Counsel for the Applicant Todd J. McCarthy, Esq. Counsel for the Respondent The issue in this Arbitration is to determine which of the parties is the insurer liable to pay Statutory Accident Benefits to Rick Richard Davis, by reason of injuries sustained by Rick Davis in a motor vehicle accident which occurred on July 30, 2002.

2 - 2 - Rick Davis was an occupant of a vehicle owned by Shawn Cassibo when that vehicle was involved in a motor vehicle accident on July 30, The Cassibo vehicle was insured by State Farm Mutual Automobile Insurance Company at the time of the accident. Pilot Insurance Company paid benefits under the SABS to Rick Davis since Rick Davis applied to Pilot for those benefits. Pilot Insurance Company insured a motor vehicle owned by Cory Kristiansen on the date of loss. Rick Davis sought benefits from Pilot on the basis that he was a spouse of Cory Kristiansen as at the date of loss. The issue to be determined in this Arbitration is whether or not Rick Davis and Cory Kristiansen were common law spouses on the date of loss, July 30, If Rick and Cory were common law spouses on the date of loss, then the insurer responsible to pay benefits under the SABS to Rick Davis would be Pilot Insurance Company. If they were not common law spouses on the date of loss, then benefits under the SABS would be payable to Rick Davis by State Farm Mutual Automobile Insurance Company. SECTION 268 OF THE INSURANCE ACT Section 268(2) of the Insurance Act sets out the rules for determining which insurer is liable to pay Statutory Accident Benefits to an Applicant. Section 268(5) provides as follows: Despite subsection (4), if a person is a named insured under a contract evidenced by a motor vehicle liability policy or the person is the spouse or same-sex partner or a dependant, as defined in the Statutory Accident Benefits Schedule, of a named insured, the person shall claim Statutory Accident Benefits against the insurer under that policy.

3 - 3 - Accordingly, if Rick and Cory were common law spouses as at the date of loss, s. 268(5) would apply and Rick, being the spouse of a named insured, i.e. the spouse of Cory, shall claim Statutory Accident Benefits against Cory s insurer, Pilot. If Rick and Cory are not found to be common law spouses as at the date of loss, Rick would claim benefits against the insurer of the automobile in which he was an occupant at the time of the accident. That would mean that State Farm Mutual Automobile Insurance Company would be the insurer responsible to pay benefits to Rick. Section 224(1) of the Insurance Act, defines spouse as follows: means either of a man and a woman who, (c) are not married to each other and have cohabited continuously for a period of not less than three years, or have cohabited in a relationship of some permanence if they are the natural or adoptive parents of a child. The parties to this Arbitration agree that Rick Davis and Cory Kristiansen are the biological parents of two children, Julia Davis born June 30, 1996 and Colin Davis born March 11, Arbitration is as follows: THE CASES Accordingly, the portion of the definition of spouse applicable to this either of a man and a woman who, (c) are not married to each other and have cohabited in a relationship of some permanence if they are the natural parents of a child. Counsel for Pilot made reference to the following cases: (a) McLean v. Wellington Insurance Co., (1995) O.I.C.D. No. 18. This was a Decision of Arbitrator Mackintosh of FSCO in February In this Arbitration, the Applicant for benefits was a pedestrian struck by a motor vehicle. She was not a named insured under any

4 - 4 - motor vehicle liability policy. She applied for benefits to Wellington which insured Dan McLean, who she claimed was her spouse at the time of the accident. The Applicant and McLean had cohabited between late 1987 and the end of 1991, although they lived together sporadically during that time frame. The couple had two natural children born in 1987 and However, at the time of the accident, the couple had not cohabited for at least one year. Mr. McLean continued to contribute support for the children and regularly visited the children. There was no evidence that the relationship between the couple continued beyond the end of 1991 and the Arbitrator concluded that the couple had stopped cohabiting in a relationship of some permanence for more than one year preceding the accident and were not cohabiting at the time of the accident. The couple ultimately resolved their differences and married in June The main issue in the Arbitration in the McLean case was whether there had to be a temporal relationship between the date of the accident and the continuance of the spousal relationship. Arbitrator Mackintosh determined that she had to consider spouse relating to the situation between the couple at the time of the accident, rather than as at some other point in time. Accordingly, notwithstanding that the couple had previously cohabited in a relationship of some permanence, that relationship had ended prior to the accident in question, so that the Applicant was not a spouse of Dan McLean as at the date of loss. The Decision of the Arbitrator in McLean was appealed to the Director s Delegate and was reported (1996) O.I.C.D., No The Director s Delegate Susan Naylor dismissed the Appeal and upheld the reasoning of Arbitrator Mackintosh. She supported the finding of the Arbitrator that the definition of spouse had to be linked to the time of the accident. She supported the conclusion that it was not sufficient for the couple to have cohabited in a

5 - 5 - relationship of some permanence at any time prior to the accident. They must have cohabited in such a relationship which continued at the time of the accident. Arbitrator Naylor made reference to the cases of McIntyre v. West Wawanosh Mutual Insurance Co. (1994) O.J. No. 652, McGuire v. Zurich Insurance Company (OIC A and A ) and Zurich Insurance Company v. Robinson (OIC P ). The Director s Delegate noted that in all of those cases, there was a theme throughout the provisions requiring a temporal connection as a condition of entitlement. The Director s Delegate found that it is a matter of common sense to recognize that both marriages and common-law relationships end. She determined that it is cohabitation as partners that determines non-married spousal status. When the parties cease to cohabit in the requisite relationship, they cease to be spouses. Whether a couple continues to cohabit in a relationship of some permanence is a question of fact, based upon the particular circumstances. (b) McIntyre v. West Wawanosh Mutual Insurance Co. (1994) O.J. No This case considered whether a couple were spouses at the time of an accident since the male spouse was killed in a motor vehicle accident and there was an issue as to whether the claimant could claim Death Benefits as spouse of the deceased. Mr. Justice O Connor stated that a common-law spousal arrangement is created by and founded on the parties intention to cohabit in a relationship of some permanence. It is ended by the parties changing their intention in this regard. Counsel for State Farm made reference to the following cases: (a) Bellis v. Innes (1980) 21 R.F.L. (2d) 40 (B.C. Co. Ct.) In this case, the Court considered whether a couple were cohabiting. This was a family law case. The Court determined that cohabit contemplate(s) an integrated relationship between the man and

6 - 6 - woman that will usually have many of the following elements, though not necessarily all of them: financial interdependence, a sexual relationship, a common principal residence, obligations on the part of each to share the responsibilities of running the home, shared use of assets such as cars, boats, etc., shared responsibilities for raising children, shared vacations and the expectation each day that there be continued mutual dependency. (b) Feehan v. Attwells (1979) 24 O.R. (2d) 248. This too was a family law case. The Court considered whether a couple who have lived together, not being married, for a considerable period of time, but who separate for a period of time within the period may still be said to have cohabited continuously. The Court concluded that the separation did not interrupt the period of cohabitation. The separation was no more than a period of reflexion of reassessment - There was no withdrawal from the relationship The actions of both parties were consistent with a continuation of cohabitation, rather than with a cessation thereof. (c) Stewart v. Liberty Mutual Insurance Company (FSCO, A ). This Arbitration also involved a claim for a Death Benefit and the issue was whether a couple were common law spouses at the time of the accident. In this case, the couple were living in separate towns at the time of the accident. The Arbitrator considered cohabitation. As one would expect, the reality of cohabitation, from a legal perspective, is quite a bit more complicated than simply the fact of living together. The Arbitrator considered various criteria to evaluate the nature of the relationship when determining whether the couple cohabited in a spousal relationship at the time of the accident. Those criteria included living arrangements of the parties, the sexual and personal behaviour of the parties, the services they provided to each other, their social participation, societal attitudes towards them, their economic relationships, and

7 - 7 - their attitude and conduct concerning children. The Arbitrator concluded that cohabitation is not determined solely on whether or not a couple actually live together under the same roof. Accordingly, based on all of the cases put before me and in particular, those referred to above, I must consider whether Rick and Cory cohabited in a relationship of some permanence at the time of the subject accident. THE EVIDENCE OF RICK AND CORY Rick Davis gave evidence at the Arbitration Hearing. He had previously given a statement which Pilot was relying upon. In the statement, he stated that he was separated from Cory at the time of the subject accident. He said that he last lived together with her at 1143 Basswood in March In the statement, he stated that upon his release from hospital following the subject accident, that he moved back into the home at 1143 Basswood with Cory and their two children. He stated that he stayed with friends during the month of April 2002 and obtained an apartment in May When examined under oath at the Hearing, Rick confirmed that he and Cory were the natural parents of their two children, Julia and Colin. He said that he and Cory had a relationship dating back to They shared a residence in They purchased a house at 1143 Basswood as joint tenants in December 2000 and still own it. When the house was purchased, he had some personal problems such that he did not move into the Basswood residence until June 2001, approximately five months after Cory and their two children moved in. Rick stated that he lived with Cory and the two children between June 2001 and March 2002.

8 - 8 - In March 2002, he moved out of their residence by reason of personal problems which he was attempting to work out. He said that he stayed with a friend at that time. He was questioned as to his relationship with Cory during the months of April, May, June and July of He stated that he attended their home or Cory and the children came to his apartment every day. He had lunches and suppers with Cory. They slept together more than once and had a sexual relationship during those months. When he obtained the apartment in which he was living at the time of the accident, Cory was involved and she signed the cheque covering the first and last month rent which Rick had to pay. Rick stated that he started employment in or about July He said that while he was out of the home, the mortgage payments were made by both himself and Cory. Other than the first and last month rent on his apartment, he paid the apartment rent. Rick stated that in 2001 and 2002, he contributed financially to the support of the children. He also did daddy duties and watched the children often during those times. He claimed that he had steady employment in the three month period pre-accident. Rick stated that there was an issue about Cory s mother residing at the house. She came to the residence while her own place was being renovated and stayed longer than expected. He said the problem with his mother-in-law was that she wanted to do everything, whereas Rick and Cory were the parents of the two children and did not need the mother-in-law to do everything. The apartment which he rented was on Montreal Street. He signed a one year lease as that was the only way to get the apartment. He said that he had plans to sublet the

9 - 9 - apartment and was pursuing that within about one month after getting the apartment. He said that he had a plan to move back home with Cory and the kids but wanted to wait until Cory s mother moved out before doing that. He said that when he moved out of the Basswood residence, it was a temporary move only. When he left, he took his clothes and a TV. Rick confirmed that Cory was employed as a computer technician at the Board of Education and had health benefits. As Cory s spouse, he was covered under her health plan and that was never interrupted during their relationship, even during the months that he briefly moved out. He said that when he was out of the Basswood property in the spring of 2002 and living on Montreal Street, that he continued to see movies and have supper with Cory and the two children. He and Cory continued to socialize with friends and family and continued to have a sexual relationship. Rick stated that following the accident, he returned home and has lived there continuously with Cory and the children since that time. Rick stated that Cory has been his spouse since they were in high school. He stated that they have never stopped being spouses. Rick stated that he left the Basswood property to move into his apartment because of personal problems. He was drinking and smoking and wanted to deal with those problems while off on his own. He said that he and Cory had a mutual understanding that that was the way in which he should work out his problems. He claimed that within a month of obtaining the apartment, he was talking about subletting it and moving back home.

10 Rick was confronted with a statement taken from Philip McGinnis, in which Mr. McGinnis stated that he was asked to rent Rick s apartment only a few months after the accident and not before. Rick stated that Philip is wrong and that he had discussions with Philip McGinnis prior to the accident. Rick repeated that he and Cory had a mutual understanding that he would move out for about three months in order to get his stuff back together. He stated that before obtaining the Basswood premises, he and Cory and the children lived together on College Street for approximately five years. Rick repeated that at the time of the accident, he was working out his problems of smoking and drinking. Cory Kristiansen was called as a witness at the Arbitration Hearing. She confirmed that she and Rick had purchased the premises at 1143 Basswood in December She and the children moved into the premises in January Rick was left behind as they had had an argument. She was unhappy with the fact that at the time he was not taking enough time to assist with the care of the two children. She was angry. He stayed in the apartment when she and the children moved out. It was decided that they would work on things and decide what would happen next. Rick ultimately moved into the premises on Basswood in June During the period before that, they always talked about the fact that he would come back but he did not move in until June Cory stated that Rick left the Basswood premises on other occasions when he was angry about something. Off and on, he would come and go. When he left, he would stay at friends. She was angry about the fact that he was not home enough and did not help out enough

11 and they argued about responsibilities. Cory said that she felt as if she was doing everything that had to be done in their home. Cory advised that in March 2002, she wanted Rick to prove that he was responsible. That is why she pushed him to rent an apartment. Part of the problem was that Rick was not working steadily. She wanted him to work out their problems. While he was away, her mother was going to move in as her own house was being worked on. During the time that Rick was out of the home starting in March 2002, she wanted to see whether he would keep a job. They talked about his moving back home. He did not want to come back while her mother was there. When he left, he took only a few dishes and pots, a sofa bed and some of his clothes, as well as a TV. She had purchased the TV for him for his birthday. While he lived in the apartment, he still helped out with money for the children. Cory advised that they did not have a joint account at the time. While Rick was out of the home, she paid all of the bills. They did have separate bank accounts before the accident. Even after Rick got a job while he was out, he did not move back largely because her mother was still in the home. He did not want to come back if her mother was there. Cory stated that they had separated on a number of times prior to March 2002 but no separation lasted for more than one or two weeks. Cory advised that she had suspicions that Rick may have been seeing another woman but he denied it. She had those suspicions before he left the house. Cory confirmed that she paid the first and last month rent for the apartment. Simply, Rick did not have any money. They agreed to a one year lease because that was standard. She stated that Rick knew a friend who was looking for an apartment and once Rick

12 was prepared to move out, he would be able to sublet it. He talked about that when the lease was signed. She believes he had discussions with Philip McGinnis about that. Following the accident, Cory attended at Rick s apartment to obtain his clothes and his TV. She left behind a few dishes and a sofa bed. She told the landlord that Rick was in hospital and that he couldn t live on his own and he would not be coming back. Neither she nor Rick made lease payments following the accident. Cory s mother moved out of the Basswood premises before Rick was out of hospital in or about mid-october Under cross-examination by Mr. McCarthy, Cory advised that she and Rick had been spouses since they moved in together in She confirmed that they took title to the house on Basswood as joint tenants. She confirmed that she and Rick had two natural children. She confirmed that Rick remained out of the house on Basswood in May and June of 2002 since her mother was living in the home with Cory and Rick did not want to move back while her mother was there. Cory confirmed that in April, May, June and July 2002, she saw Rick daily. They continued to have a sexual relationship. He would come and stay over at the Basswood premises for a couple of nights and she would spend a couple of nights at the apartment from time to time. The only difference in their relationship between April and July 2002 was that they were not living together. She said that they planned to share the residence again. The plan was that her mother would be back in her own place by September 2002 and that Rick was renting the apartment only for the summer of 2002 in essence. Cory stated that she was content if Rick was working hard for a few months and was working on his other problems of smoking and drinking.

13 Cory confirmed that Rick was always covered under her Manulife policy at work. He was listed as her spouse since she started work in the year There was never a change in his designation as her spouse under that policy. Cory stated that in the spring of 2002, she did not think that their separation would be permanent. She simply wanted him to know that she was serious about getting his act together. Cory also confirmed that they have lived together since his release from hospital in or about October POSITION OF PILOT It was argued on behalf of Pilot that Rick and Cory were not cohabiting in a relationship of some permanence at the time of the subject accident. It was argued that Rick was out of the home between March 2002 and July 30, 2002, the date of the subject accident. Pilot argued that the separation in March 2002 was different than other short separations which this couple had. Although Rick had obtained employment, he had still not moved back to the Basswood premises. Cory had suspicions that he was seeing another woman. It was argued that they were not living together and that that was an indication that there was no ongoing relationship. Pilot argued that the couple had separate bank accounts and that Cory was paying all of the expenses of the home while Rick was out of the home commencing in March The fact that Rick was contributing some money to the children does not assist us in determining that the couple had an ongoing relationship.

14 It was argued on behalf of Pilot that the fact that the couple moved in together post-accident did not assist us as one had to look at their intentions at the time of the accident, rather than after the fact. Pilot took the position that one had to consider the situation at the time of the accident. It was argued on behalf of Pilot that Rick signed a lease for one year on an apartment and that that was a marked departure for this couple. It was argued on behalf of Pilot that on balance, this couple were not cohabiting in a relationship of some permanence at the time of the subject accident. POSITION OF STATE FARM It was argued on behalf of State Farm that this Arbitration involves a consideration of whether this couple cohabited in a relationship of some permanence at the time of the subject accident. It was pointed out that if there were no children of the couple, the test would be different since the test is whether they have cohabited continuously for a period of not less than three years at the time of the accident. It was argued that the threshold in the subject case is somewhat less for a couple who have children than for a couple who do not have children. It was argued that the Arbitrator should not take too narrow a view of the continuation of spousal status. It was argued on behalf of State Farm that there was a broader meaning to the word cohabit than simply living under one roof. It was argued that living together under one roof was only one factor to consider when dealing with cohabitation. Reference was made to the Bellis case and the Stewart case as set out above. Both of those cases enlarge the meaning of cohabit to include criteria other than simply living together as indicia of cohabitation.

15 It was argued on behalf of State Farm that this couple had financial interdependence since Cory, for example, paid the first and last month rent on the apartment ultimately rented by Rick. Rick continued to help with the children even when he did not reside in the Basswood home. Rick continued to be included as Cory s spouse on her benefit plan through Manulife through her employment. Rick and Cory had bought a home together. Rick continued to help pay the mortgage in whole or part. The couple continued to have a sexual relationship even when Rick lived outside the home. The couple continued to spend nights together while Rick resided at the apartment. It was argued that Rick was out of the home in order to get his act together. He had to deal with not drinking and smoking and getting a job. The matter was then complicated as he would not move back in until Cory s mother was gone from the home. It was argued that there was no intention for the couple to have a permanent separation. It was argued that Rick left personal belongings in the home although he did remove his TV and other articles. It was argued on behalf of State Farm that the couple still considered each other as spouses and there was some continued mutual dependancy. This couple did have hot and cold periods and there were some separations. It was argued that not enough happened to say the relationship was at an end and that to reach that conclusion was too narrow of a view of their relationship. State Farm urged the Arbitrator to look beyond simple living arrangements when considering the relationship of Rick and Cory.

16 State Farm argued that the evidence of Rick was that he intended to move back into the home after his mother-in-law moved out. Counsel for State Farm urged the Arbitrator to not just take a snapshot at the time of the accident. It was finally argued on behalf of State Farm that at the time of the accident, this couple were still cohabiting in a relationship of some permanence. CONCLUSIONS I have reviewed the evidence of Rick Davis and Cory Kristiansen, I have considered the definition of spouse in s. 224(1) of the Insurance Act. I have considered the cases to which counsel for both parties have made reference. Based on the McLean case, I must consider whether Rick and Cory were spouses at the time of the subject accident, i.e. July 30, In determining the issue between the parties, I must consider the definition of spouse in s. 224(1) of the Insurance Act and in view of the fact that it is agreed that this couple were the natural parents of two children, the relevant portion of the definition which I must consider is whether or not this couple were cohabiting in a relationship of some permanence at the time of the subject accident. I make the following findings of fact before setting out my conclusions. I find as a fact that Rick and Cory had a relationship dating back to They shared a residence starting in November In December 2000, they jointly purchased a house at 1143 Basswood. Although Cory and the two children moved into the home in January 2001, Rick did not join them until about June 2001 since the couple had an argument and were attempting to work out their differences. Once Rick moved into the home, he lived there with Cory and the

17 children until March There were occasions when Rick would leave the home because of arguments between the couple but according to Cory no separation lasted for more than one or two weeks. Some differences arose between the couple in or about March Cory was unhappy with Rick s drinking and smoking and with the fact that he did not have a job. She wanted Rick to prove that he was responsible and she pushed him to rent an apartment and to move out so that he would work out their problems. She wanted to see whether he could obtain a job and keep it. Accordingly, she assisted him in renting an apartment. She even paid the first and last month rent as Rick did not have any money. Although there was a one year lease on the apartment, they felt that the apartment could be sublet. Rick apparently knew a friend who was looking for an apartment. There was some conflict in the evidence as Philip McGinnis gave a statement claiming that there was no discussion about subletting an apartment from Rick until post-accident. Notwithstanding that conflict between the statement taken from Philip McGinnis and the evidence of Cory and Rick, I accept that Cory and Rick did not feel that there would be a problem in subletting this apartment. I find as a fact that during the time that Rick was out of the home between March 2002 and the date of loss, i.e. July 30, 2002, Rick either attended at the Basswood premises to see Cory and the children daily or they would attend at the apartment. I find that he continued to eat meals with Cory and the children. Furthermore, both Rick and Cory gave evidence that they slept together during the period between March and July 30, 2002 and that they had a continuing sexual relationship during that time. Furthermore, I accept the evidence of Cory that while Rick was out of the home commencing in March 2002, that they talked about his moving back home.

18 During the period of Rick s absence, he continued to contribute financially to the support of the children and also contributed to the mortgage on the Basswood premises. It was the evidence of Rick that when he moved out of the Basswood residence, it was a temporary move only. In support of that evidence, he advised that he took some clothes and a TV and left many of his personal items in the home. Rick also stated that he and Cory continued to socialize with friends and family during the period that he was living outside the home commencing in March It was Rick s evidence that they never stopped being spouses. Cory s evidence was that she and Rick had been spouses since It was her evidence that the only difference in their relationship in the spring of 2002 was that they were not living together. Her evidence was that they planned to share the Basswood residence again. The matter was complicated in part because her mother moved into the premises for a time and Rick preferred not to return to the Basswood premises while her mother was there. Accordingly, I have evidence from both Rick and Cory that their status as spouses never changed, in their minds, between March and the end of July They both confirmed that Rick was noted as a spouse on Cory s benefit package at work starting in 2000 up to the date of the accident and beyond. Cory also gave positive evidence that she did not think their separation would be permanent when the separation occurred in the spring of She stated that she wanted Rick to move out for a time so that he would know that she was serious about getting his act together. Based on the evidence and my findings of fact as set out above in these Conclusions, I find that Rick Davis and Cory Kristiansen were common law spouses as at July

19 , 2002, the date of loss. I find that as at July 30, 2002, Rick and Cory were cohabiting in a relationship of some permanence. I find that based on the evidence of Rick and Cory that these parties did not intend to change their relationship during the period of their separation commencing in March 2002 extending up to the date of loss. They separated in order to work out problems and always intended to resume living together and continue their spousal relationship. I find that based on the evidence of Rick and Cory, numerous indicia of cohabitation were present in their relationship notwithstanding that they were living apart in the spring of These indicia were referred to in the Bellis and Stewart cases. This couple continued to demonstrate an integrated relationship in the spring of There was continued financial interdependence since they both continued to contribute to the mortgage on the Basswood premises. The financial interdependence was underlined by the fact that Cory made payment of the first and last month rent on the Montreal Street apartment rented by Rick in the spring of Both Rick and Cory confirmed that their sexual relationship continued during their separation. The Basswood premises continued to be their principal residence and Rick had left behind numerous of his possessions during the period of separation. The TV that he took away from the Basswood residence when moving to the apartment was given to him as a gift by Cory prior to their separation. The couple continued to share obligations relating to the children according to the evidence of Rick and Cory. A major reason for me to find that they were common law spouses as at the date of loss was the fact that both Rick and Cory considered themselves to be spouses of each other even during the period of their separation. Accordingly, as set out above, I find that Rick and Cory were common law spouses on the date of loss. The insurer responsible to pay benefits under the SABS to Rick

20 Davis is Pilot Insurance Company. Since Pilot Insurance Company is the company that has been paying benefits under the SABS to Rick, there will be no payment of benefits due from one insurer to the other. I order that Pilot Insurance Company pay to State Farm Mutual Automobile Insurance Company, the sum of $5, inclusive of GST and disbursements as the costs of this Arbitration. That was the quantum which both parties agreed would be the quantum of costs to be recovered by the successful party in this Arbitration. I further order that Pilot Insurance Company pay the fees and disbursements of the Arbitrator. DATED this 18 th day of May, Stephen M. Malach, Q.C., Arbitrator