A badly injured driver moves 3 years after his crash. Must the auto insurer retrofit his new home?

Auto insurers could theoretically be on the hook to retrofit houses for catastrophically impaired drivers who move into new homes years after their accidents, a recent Ontario tribunal decision suggests.

But if that happens, they may not have to pay more than what it would cost to retrofit their pre-accident houses. And the injured drivers would have to prove exactly how each of the proposed renovations in a treatment plan would benefit them.

In Orme v TD General Insurance Company, Ontario’s Licence Appeal Tribunal dealt with a complicated case involving a catastrophically injured driver who moved to a new province three years after his crash, but only a week after his catastrophic impairment designation.

Kevin Orme wanted his auto insurer, TD General Insurance Company, to pick up the estimated $722,117 tab to retrofit his new home in P.E.I., based on recommendations made in a treatment plan prepared by Accessible Daily Living in September 2023.

Orme was injured in an auto accident on May 29, 2018. At the time of the accident, he was living in an Ontario farmhouse and renting his pre-accident home.

His injuries included a traumatic brain injury resulting in memory issues, cognitive challenges, light sensitivity and hypersensitive hearing. In addition, he had chronic back pain, limited use of his left arm, wrist and hand, nerve damage in his legs, and depression anxiety and sleep disorder.

He was deemed catastrophically impaired on June 23, 2021.

One week later, he moved out of his Ontario home to a new home in PEI. He had been evicted from his prior residence due to financial constraints, and complications arising from the COVID-19 pandemic, the LAT decision notes.

“The relocation was driven by a desire to maintain a lifestyle involving hobby farming and caring for animals,” LAT Adjudicator Melanie Malach notes. “[Orme] submits that the PEI home was affordable but requires modifications to address his accessibility needs and to prevent further deterioration of his physical and mental health.”

The treatment plan

Orme submitted a treatment plan to TD in January 2023, requesting a home assessment of the applicant’s PEI home.

Recommendations for retrofitting the PEI home included:

• a main floor bedroom to avoid stairs and reduce pain
• an accessible kitchen with customized counters
• ADA-compliant [appliances], and ergonomic storage
• a relocated wood-burning furnace to an attached garage to eliminate heavy lifting
• radiant heating to alleviate muscle and joint pain
• a therapy room to support in-home rehabilitation
• safe and uniform entry/exit systems with vertical platform lifts and level walkways
• accessibility focused flooring, lighting, security and energy-efficient systems.

TD Insurance denied the claim. Orme asked his insurer to consider an alternative assessment of the home where he lived in Ontario at the time of the accident. TD agreed to an assessment of the pre-accident home in Ontario.

An assessment report for both the pre-accident Ontario home and the PEI home was submitted to the insurer in September 2023. Within a week, the insurer again denied the claim.

In its denial letter to Orme, the insurer states: “You made the decision to purchase a new home, outside of Ontario knowing that an excessive amount of upgrading and home modifications including pre-existing hidden damage may exist on the property, yet you made the decision to purchase the property.”

Also in the news: Brokers report a segmented commercial property market

At the tribunal, the insurer described the renovations contained in the treatment plan for the PEI home as “a wish list of every possible home modification that [the report’s author] believes could benefit the applicant [Orme].”

For his part, Orme denied the recommended upgrades were “excessive.”

He argued before the tribunal that “the accessibility issues in his PEI home mirror those experienced in his prior residence, and likely most any home.” Furthermore, he argued, the proposed renovations were “essential to ensure his safety in his home, improve his quality of life, reduce pain, and enable him to contribute meaningfully to his family and property,” the LAT decision says.

How the tribunal ruled

First off, the LAT said TD Insurance couldn’t refuse to retrofit Orme’s PEI home simply because he had moved three years after the accident.

“While I accept [TD Insurance’s] argument that [Orme] did not claim entitlement to home modifications until several years after the accident, there is nothing in the [Statutory Accident Benefits] Schedule that confines the period of eligibility to home modifications for an insured who suffers a CAT impairment,” Malach ruled. “Section 20(2)(a) of the Schedule expressly removes the usual 260-week post-accident limitation period for rehabilitation benefit claims when the insured is CAT impaired.”

Second, Orme provided assessments for both the Ontario pre-accident and PEI homes, the LAT found.

“I find [Orme] is not prevented from claiming entitlement to home modifications just because he no longer lives at the Ontario home,” Malach wrote.

“I find that [Orme] is entitled to the value of the home modifications that are found reasonable and necessary to the Ontario home when compared to the PEI home. I find that [Orme] is not entitled to renovations to the PEI home in excess of the value of the renovations needed to the Ontario home to accommodate [Orme’s] needs. I find that a comparison must be made of the two properties to ensure that the applicant is not receiving a windfall.”

At this point, the LAT ruled Orme did not prove the renovations listed in the treatment plan were “reasonable and necessary.”

“It is [Orme’s] onus to prove entitlement, and the tribunal cannot make a case for [him] by connecting the dots between [the treatment plan’s renovation] recommendations and the medical evidence of disability to show those modifications will reduce or eliminate the effects of the applicant’s disability,” Malach wrote.