Continental Casualty Company v. Chubb Insurance
Company of Canada et al.
[Indexed as: Continental Casualty Co. v. Chubb Insurance Co. of Canada]
2019 ONSC 3773
Superior Court of Justice, Stinson J.
June 19, 2019
Insurance — Automobile insurance — Interpretation and construction
— E being owner and CEO of forest products company which obtained
automobile insurance policy for its vehicles — E not operating company
vehicles at any time — Vehicles not being made available for E’s regular use based on fact that it was theoretically open to him as owner of
company to drive insured vehicle — Arbitrator erring in finding that
E was deemed named insured under policy based upon “regular
use” provisions in s. 3(7)(f) of Statutory Accident Benefits Schedule
— Statutory Accident Benefits Schedule — Effective September 1,
2010, O. Reg. 34/10, s. 3(7)(f).
Insurance — Automobile insurance — Priorities — E being catastrophically injured when struck by motor vehicle while jogging — E being
insured under automobile insurance policy issued by Chubb which provided him with coverage of up to $1 million for medical and rehabilitation
expenses — CNA issuing automobile insurance policy to E’s company
which included optional coverage providing for additional $1 million for
medical and rehabilitation expenses — CNA policy including OPCF-47
endorsement — Priority rules as between insurers not being altered as
result of issuance of OPCF-47 — CNA being required to pay mandatory
and optional SABS benefits to E but being entitled to reimbursement
from Chubb for cost of mandatory benefits.
E was catastrophically injured when struck by a motor vehicle while jogging. He
had a personal automobile insurance policy with Chubb which provided him with
coverage for up to $1 million for medical and rehabilitation expenses. He was also
the owner, president and CEO of a forest products company that had an automobile policy with CNA. The CNA policy included optional coverage that provided for
up to an additional $1 million for medical and rehabilitation expenses. The CNA
policy also included the OPCF-47 endorsement, and E was entitled to the benefit of
that endorsement. Chubb started paying statutory accident benefits to E, but
served a priority notice on CNA disputing its liability to pay those benefits. The
arbitrator found that CNA was the priority insurer, and thus responsible for paying E’s benefits. CNA appealed.
Held, the appeal should be allowed.
The arbitrator erred in finding that E was a “deemed named insured” under the
CNA policy based on the “regular use” provisions of s. 3(7)(f) of the Statutory
Accident Benefits Schedule — Effective September 1, 2010, O. Reg. 34/10. E did not
operate any of his company’s vehicles at any time. The vehicles were not made
available for his use based on the fact that it was theoretically open to him as the
owner of the company to drive the insured vehicles.
The priorities rule as between insurers was not altered as a result of the issuance of the OPCF-47. CNA was required to pay both mandatory and optional
SABS benefits to E, and was entitled to reimbursement from Chubb for the cost