Insurance law - Group insurance - Accident and sickness insurance - Interpretation of policy - Exclusions - Intentional acts - Accidental means, definition - External and violent, definition
June 2008Gibbens v. Co-operators Life Insurance Co.
[2008] B.C.J. No. 625
British Columbia Court of Appeal
Newbury M.V., Saunders M.E. and Frankel S.D. JJ.A.
April 15, 2008
The insurance company appealed the Supreme Court decision ruling that the paraplegia fell within the meaning of the insurance policy. In an agreed statement of facts prepared for the Supreme Court, item 4 stated "the plaintiff was insured for accidental disease/ dismemberment benefits including a $200,000 payment if the plaintiff furnishes proof of paraplegia, resulting directly and independently of all other causes from bodily injuries occasioned solely through external, violent and accidental means, without negligence on the plaintiff's part." Item 11 agreed that "the plaintiff did not intend or expect to contract HSV-2 or develop transverse myelitis when he engaged in unprotected sexual intercourse with the women." And that "the plaintiff was aware that there is a risk of contracting a sexually transmitted disease when having unprotected sexual intercourse."
Citing Martin v. American International Assurance Life Co., 2003 S.C.C. 16, [2003] 1 S.C.R. 158, the court applied a generous meaning to accidental, and concluded Gibbens transverse myelitis did not arise naturally, but arose from an external factor or "unlooked for mishap". The court determined that the injury Gibbens sustained was unintended or unexpected and therefore caused by accidental means as required by the insurance policy.
The court followed the reasoning in N.W. Commercial Travellers Ass-n v. The London Guarantee and Accident Co. (1895), 10 Man. R. 537 (C.A.) for the terms affected through external violence and accidental means. The court held that what happened to Gibbens was unusual, if not unnatural or extreme, and concluded that paralysis qualifies as "bodily injury occasioned solely through violent means as well as accidental and external means" and is therefore covered by the policy.
This case was digested by Neil J. MacDonald of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at nmacdonald@harpergrey.com.
