DECISION WITH RESPECT TO PRELIMINARY ISSUE

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1 IN THE MATTER of the Insurance Act, R.S.O. 1990, c. I.8, as amended, section 275; AND IN THE MATTER of the Arbitration Act, S.O. 1991, c. 17; AND IN THE MATTER of an arbitration; B E T W E E N : JEVCO INSURANCE COMPANY Applicant - and - THE PERSONAL INSURANCE COMPANY Respondent DECISION WITH RESPECT TO PRELIMINARY ISSUE COUNSEL Amanda Lennox Lawyer for the Applicant, Jevco Insurance Company (hereinafter referred to as Jevco ) Mark K. Donaldson Lawyer for the Respondent, The Personal Insurance Company (hereinafter referred to as The Personal ) ISSUES This loss transfer dispute arises out of personal injuries sustained by Mr. Anthony Vergalito arising from a motor vehicle accident which took place on April 5,2009. Anthony Vergalito has been receiving accident benefits paid by Jevco. Jevco seeks indemnity from The Personal pursuant to Section 275 of the Insurance Act, R.S.O. 1990, c.i.8, as amended and Ontario Regulation 664/90 and Ontario Regulation 668/90. The fault issues submitted for adjudication in this Arbitration are: (a) (b) Do any of the Fault Determination Rules apply? If so, which Fault Determination Rules applies and what is the rate of indemnity owed by the Respondent to the Applicant, if any?

2 2 (c) If none of the Fault Determination Rules apply, then what is the rate of indemnity to be paid by the Respondent to the Applicant pursuant to the Ordinary Rules of Negligence, if any? PROCEEDINGS The arbitration of this issue proceeded on the basis of Factums, document briefs, transcripts, books of authority and written submissions. LAW An historical analysis of the development of the loss transfer regime is helpful in better understanding the issues herein. Although the standard Ontario automobile policy of insurance contained no fault benefits as early as 1972, the significant expansion of available no fault benefits came in The loss transfer regime (Section 275 of the Insurance Act) was introduced to redress the financial imbalance that was caused by the shifting of what was formerly tort liability to no fault liability in the 1990 legislation. In the case of motorcycle insurers, it was accepted that their no fault burden was enhanced in comparison to the general population (due to the severity of injuries suffered by their insureds) and the tort feasor s liability was reduced. Accordingly, those insurers were awarded a right of loss transfer against all other insurers, to the degree of fault of the other insurers insured. It was similarly accepted that heavy commercial vehicles inflicted increased no fault liability on the insurers of other vehicles, so insurers of that class of vehicle were compelled to make loss transfer to the insurers of all other classes of vehicles to the degree of fault of their insured. These concepts are discussed in the following two cases: Jevco Insurance Company v. Wawanesa Mutual Insurance Company (1998), 42 O.R. (3d) 276 Royal Insurance Company v. Wawanesa Mutual Insurance Company, (2004), 14 C.C.L.I. (4 th ) 314 Relevant portions of the enabling legislation to Ontario s loss transfer regime, namely Section 275 of the Insurance Act, R.S.O. 1990, c.i.8, read as follows: Indemnification in certain cases 275 (1) The insurer responsible under subsection 268 (2) for the payment of statutory accident benefits to such classes of persons as may be named in the regulations is entitled, subject to such terms, conditions, provisions, exclusions and limits as may be prescribed, to indemnification in relation to such benefits paid by it from the insurers of such class or classes of automobiles as may be named in the regulations involved in the incident from which the responsibility to pay the statutory accident benefits arose. R.S.O. 1190, c.i.8, S.275 (1); 1993, c.10, S.275 (1). Idem

3 3 275 (2) Indemnification under subsection (1) shall be made according to the respective degree of fault of each insurer s insured as determined under the Fault Determination Rules. R.S.O. 1990, c.i.9, S.275 (2). The relevant sections of The Fault Determination Rules (Ontario Regulation 668) are as follows: 3. The degree of fault of an insured is determined without reference to, (a) The circumstances in which the incident occurs, including weather conditions, road conditions, visibility or the actions of pedestrians; or (b) The location on the insured s automobile of the point of contact with any other automobile involved in the incident. 5.(1) If an incident is not described in any of these rules, the degree of fault of the insured shall be determined in accordance with the ordinary rules of law. 5.(2) If there is insufficient information concerning an incident to determine the degree of fault of the insured, it shall be determined in accordance with the ordinary rules of law unless otherwise required by these rules. 10.(1) This section applies when automobile A collides with automobile B, and both automobiles are travelling in the same direction and in adjacent lanes. 10.(3) If the location on the road of automobiles A and B when the incident (a sideswipe ) occurs cannot be determined, the driver of each automobile is 50% at fault for the incident. 10.(4) If the incident occurs when automobile B is changing lanes, the driver of automobile A is not at fault and the driver of automobile B is 100 per cent at fault for the incident. EVIDENCE AND FACTUAL FINDINGS On April 5, 2009, Anthony Vergalito ( Vergalito ) was involved in a motor vehicle accident ( the accident ) while travelling westbound on Queenston Road, in Hamilton, Ontario. At the time of the accident, Vergalito was operating a motorcycle insured by Jevco when he collided with an automobile owned and operated by Ashley Hayes ( Hayes ) which was insured with The Personal. There are two westbound lanes on Queenston Road. On the day of the accident, Hayes was travelling westbound on Queenston Road in the left-hand (passing) lane. At the same time, Vergalito was travelling westbound on Queenston Road in the right-hand (curb) lane. Both Hayes and Vergalito were travelling towards the intersection of Queenston Road and Parkdale.

4 4 The accident occurred when Hayes attempted to change lanes from the left-hand lane to the right-hand lane. According to the Motor Vehicle Accident Report, Hayes was travelling westbound on Queenston Road in Hamilton, approaching the intersection of Glassco Avenue South, when she started to change lanes, entering Vergalito s lane of traffic. Vergalito swerved to miss Hayes vehicle and went down. Two of the crucial factual findings to be made are whether there was contact between the two vehicles and if so, can the location on the roadway of that contact be determined. Jevco takes the position that s.10(4) of the Fault Determination Rules applies to the present fact situation. The Personal takes the position that s.10(3) applies. Both parties agree that if neither of these sections apply, then fault determination ought be on the basis of the ordinary rules of negligence. At her Examination for Discovery on March 2, 2012, Hayes testified that on the day of the accident she was driving with her boyfriend, brother and sister. Her boyfriend was sitting in the front passenger seat, while her siblings sat in the rear seats. She stated that it was her intention to make a right-hand turn onto Parkdale Avenue at its intersection with Queenston Road (located immediately west of the Queenston Road and Glassco Avenue South intersection). In order to complete the turn, Hayes stated that she had to get into the righthand lane. She testified that she put her signal on, checked her mirrors and blind spot, and not seeing anyone, began to move into the right-hand lane. Upon checking her blind spot for a second time, Hayes stated that she saw Vergalito coming up in the right-hand lane; she therefore abandoned her lane change and moved back into the left-hand lane. Hayes stated that there was no impact between her vehicle and Vergalito s motorcycle. At his Examination for Discovery on March 2, 2012, Vergalito testified that prior to the accident he had been travelling westbound on Queenston Road in the right-hand lane for approximately six kilometres. Vergalito stated that he first noticed Hayes vehicle as she was moving into his lane of traffic (i.e., the right-hand lane). He noted that at the time she started her lane change that she was directly beside him. Vergalito stated that within seconds of noticing her vehicle, Hayes vehicle had come into contact with his motorcycle (the right rear quarter panel of her vehicle hitting the left side of his motorcycle). Vergalito further testified that Hayes did not have her turn signal on when she began to move into the right-hand lane. John Cartwright ( Cartwright ) was an independent witness to the accident. Prior to the accident, Cartwright had been travelling westbound in the left-hand lane directly behind Hayes vehicle. Cartwright saw Hayes vehicle attempt to change lanes and noted that it looked like she (Hayes) didn t look. Cartwright stated that the back half of Hayes vehicle touched the front end of Vergalito s motorcycle. Cartwright further stated that Hayes vehicle didn t just clip it (Vergalito s motorcycle); it hit it. it hit more like a sideswipe not a tap. She pulled back once she realized but it was too late. Following the accident, Hayes pled guilty to the charge of having made an illegal lane change. There were no charges laid against Vergalito. Jevco submits that it is entitled to indemnification from The Personal in respect of statutory accident benefits paid to Vergalito on the basis of section 275 of the Insurance Act and subsections 10(1) and (4) of the Fault Determination Rules under Regulation 668. As a result, The Personal is obliged to indemnify Jevco at the rate of 100%.

5 5 Jevco submits that subsections 10(1) and (4) of the Fault Determination Rules applies if the following criteria are met: 1. The Hayes vehicle and Vergalito motorcycle were travelling in the same direction and in adjacent lanes; 2. The Hayes vehicle changed lanes when the incident occurred; and 3. The Hayes vehicle collided (made contact ) with the Vergalito motorcycle. Jevco submits that the following evidence supports that the accident meets the criteria required by subsections 10(1) and (4) of the Fault Determination Rules: The Hayes vehicle and the Vergalito motorcycle were travelling in the same direction and in adjacent lanes. There are two westbound roads on Queenston Road. Immediately prior to the accident, the Hayes vehicle was travelling westbound in the left-hand lane, while the Vergalito motorcycle was travelling westbound in the right-hand lane. The accident occurred when Hayes attempted to change lanes from the lefthand lane to the right-hand lane. At her Examination for Discovery, Hayes stated that she intended to get into the right-hand lane in order to make a right-hand turn onto Parkdale Avenue at its intersection with Queenston Road. She further stated that immediately prior to the accident, she did in fact begin to move into the right-hand lane. At his Examination for Discovery, Vergalito stated that he first noticed Hayes vehicle as she was moving into the right-hand lane (i.e., changing lanes). Further, the independent witness Cartwright stated that he saw the Hayes vehicle change lanes immediately prior to the accident. Finally, Hayes pled guilty to the charge of making an illegal lane change. The evidence supports that the Hayes vehicle collided (made contact ) with the Vergalito motorcycle. Vergalito testified at his Examination for Discovery that the Hayes vehicle came into contact with his motorcycle; specifically, he stated that the right rear quarter panel of Hayes vehicle hit the left side of his motorcycle. The appraisal performed by Metro Claim Services Ltd. shows that the left side of Vergalito s motorcycle sustained damage in the accident. As Vergalito testified that prior to the accident, he had had no reason to take his motorcycle back to the dealer for repairs in the one month that he had owned it, the appraisal supports his testimony that, in the accident, the right side of Hayes vehicle made contact with the left side of his motorcycle. Further, the independent witness Cartwright corroborated Vergalito s testimony, stating that the back half of Hayes vehicle touched the front end of Vergalito s motorcycle. Cartwright further noted that Hayes vehicle didn t just clip it (Vergalito s motorcycle); it hit it. it hit more like a sideswipe not a tap. Jevco submits that the Motor Vehicle Accident Report contains independent evidence that there was contact between the Hayes vehicle and the Vergalito motorcycle. Specifically, the code #60 listed on the report indicates that there was light damage to the Hayes vehicle, which supports Jevco s position that the two vehicles did in fact make contact in the accident.

6 6 Jevco submits that the only evidence that supports the contention that the Hayes vehicle did not come into contact with the Vergalito motorcycle is the testimony of Hayes herself. As Hayes was travelling in the left-hand lane and Vergalito was travelling in the right-hand lane, any contact between the vehicles would be between the right side of Hayes vehicle and the left side of Vergalito s motorcycle. At the time of the accident, Hayes had three passengers in her vehicle, one sitting in the front passenger seat and two in the rear. The evidence suggests that contact occurred between the rear of Hayes vehicle and the front of Vergalito s motorcycle. Jevco submits that it is possible that one or more of Hayes passengers obstructed her ability to see whether the right rear end of her vehicle made contact with the left front end of Vergalito s motorcycle. Given these circumstances and the contradictory notations on the Motor Vehicle Accident Report, Jevco further submits that Hayes testimony is potentially flawed, and therefore unreliable. The Respondent submits that s.10(4) of the Fault Determination Rules should not apply. Rather, it is s.10(3) that ought apply, or in the alternative, the ordinary rules of negligence. The section reads as follows: 10.(3) If the location on the road of automobiles A and B when the incident (a sideswipe ) occurs cannot be determined, the driver of each automobile is 50% at fault for the incident. The Respondent submits that the incident did not occur when Hayes was changing lanes. Rather, the investigating officer noted that Hayes started to change lanes and that Vergalito swerved and fell from his motorcycle. The Respondent submits that Hayes has consistently stated that when she observed Vergalito approaching she returned to her original lane and that there was no impact as between the two vehicles. The Respondent submits that the physical evidence does not support a finding that there was contact between the vehicles. Further, they claim that Vergalito s description of the loss to the investigating police officer is at variance with what he described at his Examination for Discovery. On the evidence overall I find that subsections 10(1) and (4) of the Fault Determination Rules do apply and following criteria are met: 1) The Hayes vehicle and Vergalito motorcycle were travelling in the same direction and in adjacent lanes; 2) The Hayes vehicle changed lanes when the incident occurred; and 3) The Hayes vehicle collided (made contact ) with the Vergalito motorcycle. I prefer the evidence of Vergalito to that of Hayes. I find as a fact that Hayes moved into the right lane just as the Vergalito motorcycle was coming up the right lane. Vergalito states that the Hayes vehicle came into my lane and hit me. The independent witness John Cartwright supports a finding of fact that there was contact. He stated the back half of her car touched the front end of his bike. It didn t just clip it, it hit it. Furthermore, the police report in describing the condition of the Hayes vehicle indicates light damage. As for the location of the impact, I find that it took place in the right lane. Not only does Vergalito s evidence so indicate, but even Hayes indicates she made it almost half way into the curb lane before noticing the motorcycle. The investigating police officer determined the point of impact as being 2.8 metres south of the north curb. Assuming a standard lane is about 12 feet wide,

7 7 the impact point would be within the curb lane consistent with the diagram contained on the face of the police report. In reaching my decision, I rely heavily on the basic principles that have evolved from the case law relative to loss transfer disputes outlined as follows: 1. The purpose of the legislative scheme under Section 275 of the Insurance Act and Regulation 668 is to provide for an expedient and summary method of reimbursing the first party insurer for payment of no fault benefits from the second party insurer whose insured was fully or partially at fault for an accident. The fault of the insured is to be determined strictly in accordance with the Fault Determination Rules, prescribed by Regulation 668. Jevco Insurance Co. v. York Fire & Casualty Co. [1996] O.J. No. 646 (C.A.) Jevco Insurance Co. v. Canadian General Insurance Co. [1993] O.J. No The Fault Determination Rules contained in Regulation 668 set out a series of general types of accidents and to facilitate indemnification without the necessity of allocating actual fault, they allocate fault according to the type of a particular accident in a manner that, in most cases, would probably but not necessarily correspond with actual fault. The thrust of the Fault Determination Rules is based on well established rules of the road to determine the probability of fault. Jevco Insurance Co. v. York Fire & Casualty Co. [1995] O.J. No The Fault Determination Rules are to be liberally construed and applied. Fault determination under the rules is indifferent to factors which would apply under the ordinary rules of tort law. Co-operators General Insurance Co. v. Canadian General Ins. Co. [1999] O.J. No The purpose of the legislation is to spread the load among insurers in a gross and somewhat arbitrary fashion, favouring expedition and economy over finite exactitude. Jevco Insurance Co. v. York Fire & Casualty Co. [1996] O.J. No. 646 (C.A.) 5. A common sense approach is to be used when considering the Fault Determination Rules and the diagrams in the regulation. Royal & SunAlliance Insurance Co. v. Axa Insurance Co. Arbitrator Bruce Robinson, November 21, 2003 Upon these principles, keeping in mind that the purpose of the legislation is to spread the load among the insurers in a gross and somewhat arbitrary fashion, favouring expedition and economy over finite exactitude, I cannot help but find that Rule 10(4) of the Fault Determination Rules applies to this situation given my characterization of this as a lane change situation as contemplated by Rule 10 (4) of the Fault Determination Rules.

8 8 ORDER On the basis of the findings aforesaid, I hereby order that The Personal reimburse Jevco for all accident benefits payments that are properly the subject matter of indemnification, together with appropriate interest calculated in accordance with the Courts of Justice Act. I order that The Personal pay to Jevco its legal costs on a partial indemnity basis. I order that The Personal pay the Arbitrator s costs. In the event that the parties cannot resolve the issues of indemnity, interest or costs, I would be pleased to remain involved. DATED at TORONTO this 7 th ) day of December, ) KENNETH J. BIALKOWSKI Arbitrator

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