The Plaintiff Kilgour’s claim for entitlement to no-fault accident benefits was dismissed where the court found that Kilgour had not been “totally disabled” within the meaning of the policy since the accident and had failed to file the appropriate forms within the prescribed time limit

Kilgour v. Perth Insurance, [2004] A.J. No. 1066, Alberta Court of Queen’s Bench

Kilgour was involved in a motor vehicle accident on September 11, 2002. He contacted a representative of the Defendant (“Economical Mutual”) on September 23rd and that representative delivered a letter and a claim package to Kilgour on September 27, 2002. Kilgour was advised to obtain his employment records as he would have to establish that he had been working for six of the prior twelve months or been employed on the date of the collision in order to qualify for the income loss portion of the benefits. Despite efforts by an adjuster for Economical Mutual to maintain contact with Kilgour, Kilgour failed to follow-up with his claim until February 19, 2003. Economical Mutual disallowed Kilgour’s claim on the basis that he was not “totally disabled” within the meaning of the policy, had not been employed on the date of the collision or employed for six of the twelve months preceding the collision, and had failed to provide either proof of claim or any other supporting documentation within 90 days as required under the policy.

The court reviewed the medical evidence and noted that two family physicians seen by Kilgour had provided an opinion that he was totally disabled. However, Kilgour’s own evidence at the trial was that he had been able to work in a limited capacity throughout the relevant time frame. The court further found that Kilgour had been out of work for at least three weeks prior to the accident and had not been employed for six of the twelve months prior to collision. On this basis, the court held that Kilgour did not meet the requirements for total disability under the policy and was not entitled to a weekly benefit.

On the issue of the 90-day limitation, the court was satisfied that Kilgour did not submit the appropriate forms as required because he “simply did not bother”. The time limitation was clearly brought to his attention by the adjuster for Economical Mutual and Kilgour merely chose to ignore the limitation period.

In the result, the Plaintiff’s claim was dismissed.

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