Co-operators v. Intact and Northbridge, Private Arbitration, Arbitrator Novick
In this priority matter, the claimant was struck as a pedestrian after disembarking his tractor trailer, of which he had regular use. He applied for SABS benefits to his wife’s personal insurer, Co-operators. Co-operators had placed Intact on notice for having insured the claimant on a personal policy. Co-operators had also placed Economical on notice, as preliminary investigation suggested that Economical insured the tractor trailer. However, after the 90-day notice deadline passed, it was discovered that Northbridge actually insured the tractor trailer. Intact then provided notice to Northbridge under Section 10 of O. Reg 283/95.
At the ensuing arbitration, first there was a dispute as to whether the claimant was an “occupant” of the tractor trailer when struck as a pedestrian by a passing car. Arbitrator Novick found that an objective observer would have considered him to be a driver of the tractor trailer at the time of the accident. Although the exact circumstances of the accident were unclear, the claimant was in the process of delivering a load at the time and was expected to return to the vehicle to do so.
Second, Northbridge disputed that it could be brought into the arbitration because it did not receive notice from Co-operators within 90 days of the OCF-1 being received. While Section 10 permits “second insurers” to serve other insurers with notice, Northbridge argued that it should not operate to “save” the first insurer where it failed to serve proper notice on an insurer higher in priority within 90 days. Northbridge argued that Section 10 notices should only be effective if the “second insurer” serving the notice is higher in priority than the “first insurer” which received the OCF-1.
Arbitrator Novick disagreed with Northbridge. She found that the 90-day notice requirement in Section 3 is intended to “get the party started”. Insurers who are later placed on notice under Section 10 may be brought into the arbitration proceeding regardless of how they stack up in comparison in comparison to the other insurers involved. Co-operators was not barred from pursuing Northbridge, which was determined to be the priority insurer.
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