Notifying insurer of accident is not the same as making an AB claim: court

Intact Insurance Company won a decision against an insured who notified the insurer of an accident within seven days of his accident, but didn’t apply for accident benefits until almost two years later.

In Jakupovic v Intact Insurance Company, an Ontario License Appeals Tribunal adjudicator found the insured showed enough foresight to contact his insurer about his vehicle damage after an accident in February 2019, and so he should have known to apply for accident benefits at that time if he was injured.

The claimant argued the insurance company should have asked him if he was injured when he reported the accident.    

“I am not persuaded by the applicant’s position that the respondent has a duty to take reasonable steps to contact the applicant in order to ascertain whether they are seeking accident benefits,” LAT adjudicator Tavlin Kaur wrote in a decision released in December.  

“I am not persuaded by the [claimant’s] argument regarding [Intact] not providing him with information and forms. The [insurer] could not have sent the appropriate forms and provided information to the [claimant] where the [claimant] did not notify it of any accident-related injuries, and where [the insurer] was not made aware of his intention to seek accident benefits.” 

Hussein Jakupovic was involved in an automobile accident on Feb. 13, 2019, and later sought accident benefits. Intact denied the benefits based on the request coming too late after the accident — almost two years late. Jakupovic applied to the LAT to resolve the dispute.  

In its decision, LAT found Jakupovic notified Intact and reported “heavy damage” to the vehicle only one day after the collision occurred. The vehicle was not drivable and declared a total loss. 

But Jakupovic only notified Intact of his injuries on Dec. 2, 2020. Following the law, Intact sent him an application for accident benefits, an OCF-1 form, on Dec. 12, 2020. 

In an argument before LAT, Jakupovic said he alerted Intact of the accident by notifying his insurer that the accident occurred. He said the company should’ve made further inquiries about whether he was injured at that time. That’s when the company should have provided him with an accident benefits package to educate and inform him about accident benefits and the application process, he contended. 

However, per section 32(1) of the Statutory Accident Benefits Schedule (SABS), a person who intends to apply for statutory accident benefits must notify the insurer of their intention no later than the seventh day after the incident to be entitled to the benefit, “or as soon as practicable after.” 

Kaur noted s. 34 of the SABs says “a person’s failure to comply with a time limit…does not disentitle the person to a benefit if the person has a reasonable explanation.”  

The onus is on the applicant to establish a reasonable explanation. Kaur spelled out what counts under the law as a “reasonable” explanation:

• An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed. 
• The onus is on the insured person to establish a “reasonable explanation.” 
• Ignorance of the law alone is not a “reasonable explanation.” 

Kaur ruled Jakupovic’s explanation was not “credible or worthy of belief.” For example, he found that when the insured notified his insurer a day after the accident, the adjuster had no notes regarding any sustained injuries. 

“In fact, the [claimant] had multiple communications with [Intact] following the accident and no mention was made of any injuries from the accident or his intention to seek accident benefits. Rather, the communications were in relation to a property damage claim,” Kaur wrote.  

“It was not until Dec. 2, 2020, when an employee by the name of Pavinder from Gustan Legal Services informed [Intact] that the [claimant] had sustained injuries as a result of the accident.” 

On Dec. 12, 2020, Jakupovic sent his application for accident benefits, to which Intact responded with the package on Dec. 16, 2020.  

Kaur acknowledged that, upon receiving notice of Jakupovic’s intent to apply for accident benefits, Intact sent the forms over. 

 

Featured image by iStock.com/CHRISsadowski