Monachino v. Liberty Mutual Fire Insurance Co. et al., (1997) 40 O.T.C. 279 (GD)

• Judge: Keenan, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: September 05, 1997
• Jurisdiction: Ontario
• Citations: (1997), 40 O.T.C. 279 (GD)

Monachino v. Liberty Mutual (1997), 40 O.T.C. 279 (GD)

MLB headnote and full text

Temp. Cite: [1997] O.T.C. TBEd. SE.080

Sylvio Monachino (plaintiff) v. Liberty Mutual Fire Insurance Company and AXA Home Insurance Company et al. (defendants)

(Court File No. 94-CU-81898)

Indexed As: Monachino v. Liberty Mutual Fire Insurance Co. et al.

Ontario Court of Justice

General Division

Keenan, J.

September 5, 1997.

Summary:

The plaintiff, a third year university student, was seriously injured when his car was broad-sided by the defendant's car at an intersection. His insurer, Axa, denied coverage where the insurance broker had appropriated the premium to his own use and had not forwarded the application and premium to the insurer. The defendant's insurer, Liberty, paid weekly benefits to the plaintiff. The plaintiff sought increased benefits, based on purported income from employment prior to the accident. His mother sought care benefits for services rendered in caring for the plaintiff.

The Ontario Court (General Division) affirmed that Axa was not liable, where the insurance broker's acts were outside the scope of his authority to act on behalf of Axa. The court held that the plaintiff was entitled to income benefits from Liberty under s. 12 of the No-Fault Schedule based on his employment income and not under s. 13 as a full-time student with no income. The court denied the plaintiff's mother's claim to care benefits.

Insurance - Topic 551

Agents - Liability of insurer for acts of agent - Fraud - See paragraph 24.

Insurance - Topic 3427

Payment of insurance proceeds - Appraisal or arbitration - Arbitration - Punishment for misconduct - See paragraphs 81 to 85.

Insurance - Topic 5067

Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Reimbursement for services and supplies essential for treatment or rehabilitation - Reasonable expenses (No Fault Benefits Schedule, s. 7(1)(b)) - See paragraphs 39 to 61.

Insurance - Topic 5067

Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Reimbursement for services and supplies essential for treatment or rehabilitation - Plan for future care - See paragraphs 62 to 80.

Insurance - Topic 5068

Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Income replacement - See paragraphs 25 to 38.

Cases Noticed:

Bonitatibus v. Wellington Insurance Co., [1993] O.I.C.D. No. 17, refd to. [para. 37].

MacDonald v. Travelers Indemnity Co. of Canada (1987), 60 O.R.(2d) 385 (H.C.), refd to. [para. 40].

Placken v. Canadian Surety Co. (1990), 47 C.C.L.I. 268 (Dist. Ct.), refd to. [para. 40].

Bush v. Pilot Insurance Co., [1994] O.I.C.D. No. 42, refd to. [para. 42].

Migliore et al. v. Co-operators Insurance Association (1987), 7 M.V.R.(2d) 259 (Ont. H.C.), refd to. [para. 46].

MacIsaac and MacIsaac v. Smith and Thomas (1987), 20 O.A.C. 241; 58 O.R.(2d) 289 (Div. Ct.), refd to. [para. 48].

Prasad v. Gan Canada Insurance Co. (1997), 100 O.A.C. 63; 33 O.R.(3d) 481 (C.A.), refd to. [para. 55].

Solosky v. Canada, [1979] 1 S.C.R. 821; 30 N.R. 380; 105 D.L.R.(3d) 745, refd to. [para. 64].

Statutes Noticed:

Insurance Act Regulations (Ont.), No-Fault Benefits Schedule, Reg, 273/90, sect. 7 [para. 41]; sect. 12(2), sect. 12(3), sect. 12(4), sect. 12(7), sect. 13(2), sect. 13(3) [para. 25].

Authors and Works Noticed:

Black's Law Dictionary (6th Ed. 1990), generally [para. 51].

Concise Oxford Dictionary (8th Ed. 1990), generally [para. 50].

Counsel:

L.C. Brown, for the plaintiff;

D.G. Martin, Q.C., for the defendant, Liberty Mutual;

G.D.E. Adair, Q.C., and K. Springstead, for AXA Home Insurance.

This case was heard before Keenan, J., of the Ontario Court (General Division), who delivered the following judgment on September 5, 1997.