Did Insurer Wait Too Long to Commence Action - Kamalavannan Kumarasamy Plaintiff (Respondent) and Western Life Assurance Company and Morris National Inc. Defendants (Appellant)

December 07, 2021, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Kamalavannan Kumarasamy Plaintiff (Respondent) and Western Life Assurance Company and Morris National Inc. Defendants (Appellant)
 

HEARD ON: November 30, 2021

HEARD BEFORE: Nordheimer J.A

NOTICE PERIOD: limitation; reasonable delay; time limits

Mr Kumarasamy was working as a truck driver when he was injured in a car accident on August 25, 2014. He has not been able to work since that time due to back, neck and shoulder injuries sustained in the crash. He also suffers from depression, anxiety and chronic pain disorder. The Ministry of Transportation has suspended his driver’s licence due to his medical condition.
 

Mr Kumarasamy, who spoke very little English, contacted his employer and insurer via his sister who completed many of the forms including the Notice of Claim form. The insurer responded three times by mail requesting that an application for LTD benefits be completed. It was not. In February 2017 Mr Kumarasamy retained a lawyer to represent him in the LTD claims. The lawyers completed the forms and communicated with the insurer. In late June the insurer denied the claim on the basis that the information in the application did not support a reasonable cause for the delay in application.

Mr Kumarasamy subsequently filed a statement of claim against the insurer in June 2019. The lower court dismissed the summary judgement motion saying that the insured was not out of time. The motion court judge said that the insured did not know about the claim until there was a clear and unequivocal denial from the insurer. 

The court of appeal disagreed. Justice Norheimer said that there were times much earlier when the insured should have been aware that there was a claim and therefore should have commenced the claim much sooner. Since Mr Kumarasamy started the claim too late, the Court of Appeal reversed the decision of the motions court judge and allowed the summary judgement motion. The insurer’s claim was dismissed. 

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