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Loss Transfer / Priority Disputes

Star Wars Truisms: Do or Do Not, There is No Try

 Mar 8, 2018 9:00 AM
by Kevin Mitchell

The February 27, 2018 priority preliminary arbitration award of Ken Bialkowski in Aviva v. Intact involves an 18 year old, unemployed passenger in an Aviva insured auto injured on February 3, 2016. The issue was if Aviva’s late notice to Intact could be cured. The merits would suggest the claimant resolved with Aviva, at best, upon occupancy while at the next higher tier with Intact upon dependency.

That the award was rendered in six days is, to my mind, testament to the overarching principles at play despite that this issue is said to largely be a fact driven analysis. Upon my first run through of this case, and before I reached its conclusion, the most recent of the two main authorities relied upon came to mind; Justice Perell’s December 10, 2007 judgment in Liberty v. Zurich. Liberty had made extraordinary efforts to locate and notify a respondent insurer but still gave late notice and fell short at arbitration and on appeal. Ultimately, Liberty was found to have made reasonable efforts but the 90 days was felt to have been a sufficient time within which those efforts should have been made.

With the tools available to it, Aviva’s efforts in the case at hand fell well short in comparison and paragraph 27 of the award advises it failed on both prongs of the test. Recall the onus is on the party seeking to extend the 90 day notice period. Owing to the strictness of the rule’s application, and despite misgivings by or on behalf of the claimant, Aviva’s approach on an ‘escalating scale’ of investigation ‘commensurate with the lack of co-operation’ was in the end not consecrated. It was clear that with a basic factual foundation in hand, Aviva was within about a 24 hour period able to identify Intact and give both it and the claimant notice. Taking well more than 89 days to get to that point was their Achilles heel. With the breadth of insurers to whom a claimant can make a SABS claim, it is not without some understanding why a claimant might simply submit a claim to the insurer in respect of which they are an ‘occupant’. For the insurer first receiving the claim, if the claimant is not your named insured and an occupant of your described auto, it is potentially a lost opportunity not to make an early and robust investigation. Costs followed the cause. May the force be with Aviva if it chooses to appeal.

Kevin is a Partner of Samis+Company. Throughout his career, he has practiced almost exclusively in the area of accident benefit and bodily injury matters arising from motor vehicle accidents. He has also defended various non-motor vehicle bodily injury claims. Kevin carries on a robust practice involving privately arbitrated disputes between insurers in both priority and loss transfer matters. 

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