Court orders auto insurer to pay $365K in AB home renovation dispute

Ontario’s Divisional Court has ordered Certas Home and Auto Insurance Company to pay out more than $365,000 to a 92-year-old auto accident benefits (AB) claimant to allow her to modify and live in her daughter’s home with “immediate effect.”

The court overturned a decision by the Licence Appeal Tribunal last December. The LAT agreed with Certas’ alternate proposal to pay $22,000 so that the claimant could renovate and live in her own condominium.

Certas agreed the claimant could use the $22,000 towards renovating her daughter’s home if she wished to pursue that option. But the insurer disagreed that renovating her daughter’s home was a “reasonable and necessary” accommodation.

A unanimous panel of three judges on the divisional court reversed the LAT decision. It also advocated for a speedy implementation of the ruling.

“In the exceptional circumstances of this case, we would not send the case back to the LAT, and instead we would order that the [claimant] is entitled to the costs of the disputed plan in the amount of $365,257.00, with immediate effect,” the Ontario Divisional Court wrote in a brief endorsement released Sept. 30.

“The [claimant] is 92 years old. She requires the money to move forward with her life. If we were to remit the matter back, it is reasonably foreseeable that justice would come too late to do her any good at all. As it is, the [claimant] has suffered another injurious fall and cannot return to her condominium.”

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The dispute hinged on whether moving into her daughter’s home was “reasonable and necessary” for the auto insurer to accommodate the claimant’s catastrophic impairments, sustained in a car crash nine years ago. The insurer believed the claimant’s condo could be renovated for her to live there safely, without the need to move into her daughter’s home.

The background

Ersilia Sorrentino, the claimant, was involved in an auto collision on Apr. 26, 2016, and sought auto accident benefits. She was 83 years old at the time, and sustained many injuries, including several fractures, multiple orthopaedic surgeries, leg, hip, neck pain, anxiety, depression, headaches, and cognitive issues.

Her injuries were deemed catastrophic.

At the time of the accident, she was living independently in her condo unit. After the accident, she continued to live in her unit on her own with the assistance of attendant care services. She and her auto insurer, Certas, agreed that in order to accommodate her injuries and provide her with a safe living environment, home modifications need to be completed.

But Sorrentino felt it was not safe for her to live alone in her unit due to her injuries, even with Certas’ proposed modifications and the attendant care she was receiving. She felt it would be better for her to live with her daughter, who could provide around-the-clock care and a safe living environment in her home. She submitted an assessment for $388,082.53 to modify her daughter’s home.

Certas denied that claim. Instead, the insurer approved $22,835.53 for modifications to her condo unit and agreed she could use that amount towards the modification of her daughter’s home, if she wished to go that route.

The LAT decision

Sorrentino appealed the insurer’s decision to the LAT. She said Certas’ proposal was insufficient, in part because the property manager would have to approve some of the insurer’s proposed modifications. She had heard the property manager would not accept some of the modifications.

But the LAT adjudicator found Sorrentino provided no proof that the property manager had denied the insurer’s requested modifications.

“The [claimant] has provided me with two in home assessments, one for her current unit and another for her daughter’s house, however where she has failed to meet her burden is by providing me with a list of approved or disapproved modifications to her current unit by someone in authority, namely the owner/landlord or property management company,” LAT adjudicator Mary Heinen Thorn wrote in a decision released last December.

“The onus is on [the claimant] to prove that the disputed OCF-18 for home modifications to her daughter’s home is reasonable and necessary. It is not [Certas’] burden to prove otherwise. She has not met her burden and I therefore find she is not entitled to the disputed amount for this treatment plan.”

What’s next…

Ontario’s divisional court has yet to release written reasons for why it overturned the LAT decision. Its endorsement — basically, a brief court order providing direction — says its reasons will come. But it made clear the insurer will have to pay right away, unless the Ontario Court of Appeal decides otherwise.

“To be clear, by ‘immediate effect,’ we mean precisely that,” the Ontario Divisional Court ruled. “Our decision is not stayed [halted] pending proceedings to seek leave to appeal to the Ontario Court of Appeal, absent a stay order expressly granting that relief from that court.” 

David Gambrill

David has twice served as Canadian Underwriter’s senior editor, both from 2005 to 2012, and again from 2017 to the present.