SNOW…AND ICE, ICE, BABY
All right, stop, collaborate and listen…
Snow arrived much earlier than many of us expected. It isn’t 12 Inches of Snow just yet, but it is a seasonal reminder to many AB claims examiners that a flurry of OCF-1s may soon appear on their desks.
Consider this blog posting your Informer about snow, ice, and the SABS definition of “accident”.
Both the “purpose test” and “causation test” need to be met in order to establish an “accident”. The purpose test (whether the automobile was being put to an ordinary and well-known use) is usually easier to meet. The “causation test” considers “but for” causation, intervening events and the dominant feature (time, proximity, activity and risk) of the incident. The causation test is predominantly where these cases succeed or fail.
In snow and ice fall cases, the trend from the LAT seems to be that these cases are more likely to be put on ice.
In R.M. v. Certas, the applicant started the process of opening her car door and even had her hand on the door handle when she fell on ice next to her car. Ice, not use or operation of an automobile, was the dominant feature and it was held at first instance, and on reconsideration, that the incident was not an “accident”.
In another case, J.D., a jogger, stopped at the sidewalk’s edge. A car stopped and startled J.D. when it advanced. J.D. slipped on ice beneath her. She was held in J.D. v. Certas not to be involved in an “accident”. Again, ice was considered the dominant feature of the incident. Admissions contained within early hospital and medical records referring to ice as the cause of her fall were key for the defence.
In yet another case, 18-003463 v. Certas, C.S.’s car was parked outside Walmart, engine off, and locked when she took a few steps away from her car and fell. She denied any contact with her car. Ice was held to be an intervening event. She was held not to have been involved in an “accident”. Note in this case the applicant argued that because Certas had paid the claim up until raising the “accident” issue it should be prevented from taking that position later. The LAT held that an insurer’s decision to pay benefits does not constitute a waiver of its right to dispute entitlement at a future date.
The applicant in B.Y. v. TD (18-001537) told slightly different stories about whether his hand was touching his car when he fell on black ice. It didn’t matter. The black ice was held to be an intervening event regardless of whether he had contact with his car.
Slush can also knock someone’s claim off its feet. In D.M. and Certas (17-000180) the Applicant was walking back from a store and went to clean the snow from her side mirror. She fell on slush and was held not to have been involved in an “accident”. Note in this case that D.M.’s case failed the “purpose test” before the adjudicator addressed the “causation test” that found the slip and fall itself to be the dominant feature of the incident. The adjudicator relied on several prior decisions including Banos and Jevco (FSCO A14-004846), a case I successfully argued several years ago.
- Falls on ice may help control a new SABS claim early on;
- Don’t be deterred by a claimant’s “reach” for accident benefits by stating he or she had their hand on the car when they fell;
- Look for key admissions in records generated soon after the incident – hospital and family physician records are often helpful; taking statements that document the sequence of events, or using an EUO to pin down the facts, can also be helpful control measures;
- Don’t be deterred by having paid the claim previously – the insurer can later change its position upon whether the incident was an “accident” and still defend.