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Monday Morning Case Bites for October 26, 2020

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Amanda Kostek & Steven Graham

Downey v Scotia Life Insurance Company, 2020 ABQB 638
Accidental Death Benefits | Exclusion Clauses

The Plaintiff sought to receive accidental death benefits pursuant to her policy issued by the Defendant, as a result of her husband’s death. The Plaintiff’s husband was on a fishing trip and experienced a cardiac event, causing him to collapse and capsize his boat, where he subsequently drowned.  

The policy had an exclusion clause, the relevant portion of which contained the following wording:

[5]               The pertinent aspects of the Policies’ exclusion clauses read as follows: 

WHAT’S NOT COVERED 

No Benefit Amount will be payable if Your death or Hospital confinement resulted directly or indirectly from, or was in any manner or degree associated with or occasioned by, any one or more of the following, or if any one or more of the following contributed in any way whatsoever to Your death or Hospital confinement: 

(a) any naturally occurring condition, illness or disease or bodily or mental infirmity of any kind, or medical or surgical treatment for any such condition, illness disease or infirmity; 

 There were conflicting opinions by the expert pathologists called to determine if the deceased’s cause of death was due to the cardiac event or not. The Court ultimately found that while the deceased undeniably experienced a cardiac event, his cause of death was drowning, and drowning alone.  

[16]           Based upon the evidence, I find, on a balance of probabilities, that Mr. Downey died from drowning, and drowning alone. 

[17]           Contrary to the Coroner’s Report, I do not find a myocardial infarction to have been one of Mr. Downey’s physiological or medical causes of death. That is, it has not been proven that Mr. Downey suffered a cardiac event of such severity as to cause his heart to stop functioning. As Dr. Milroy implicitly acknowledged, there is no basis to conclude that Mr. Downey went into cardiac arrest as a result of that cardiac event. 

[18]           Although Mr. Downey drowned, and did not die from a myocardial infarction, there is no doubt that Mr. Downey suffered some manner of “cardiac event” or “event related to ischemic heart disease” which caused him to capsize the boat and to be thrown into the lake. The precise nature of that event cannot be determined, and has not been proven. It is possible that this cardiac event was a myocardial infarction as stated in the Coroner’s Report. However, both experts agreed that there exists no medical or scientific proof that a myocardial infarction occurred. It is at least equally probable that Mr. Downey experienced a cardiac event that would have been survivable had it not caused him to be expelled into a body of water. 

[19]           The cardiac event was of such severity as to cause Mr. Downey to slump over, which in turn caused the boat to capsize. The cardiac event also deprived Mr. Downey of his ability to swim to shore, or to otherwise save himself from drowning. However, the cardiac event did not cause Mr. Downey to lose consciousness or the ability to reason during the few moments before his death. Mr. Downey was able to tell his mother that he could not swim, and he was able to struggle enough to cause his steel toed boots to come off his feet. In Dr. Butt’s words, Mr. Downey was compos mentis in the moments before his death. This evidence supports the conclusion that the cardiac event did not cause Mr. Downey’s death in the physiological or medical sense. 

[20]           I also find that the cardiac event experienced by Mr. Downey was related to a naturally occurring, pre-existing condition, infirmity or disease. Mr. Downey’s medical records include ECG charts which the experts interpreted as indicating the presence of a heart rhythm abnormality which, as Dr. Milroy explained, increases the likelihood of cardiac events. I therefore find that a naturally occurring heart condition caused the cardiac event which in turn caused Mr. Downey to be thrown into the lake. 

The Court confirmed that the insured always bears the primary burden of establishing that the damage or loss falls within the initial coverage. The burden then shifts to the insurer to establish that an exclusion applies.  

The Court relied on the Supreme Court of Canada’s decision in Co-Operators Life Insurance Co. V Gibbens (2009 SCC 59) for the principle that there must usually be a ‘mishap or untoward event’ to which the death can be attributed, otherwise there will not be liability under an accident policy: 

[28]           Gibbens also confirms that the mere presence of a “disease”, i.e. “a departure from the normal state of health”, along the chain of events leading to a loss will not necessarily negate the presence of an “accident”. For example, in Re Etherington and The Lancashire and Yorkshire Accident Insurance Co., [1909] 1 K.B. 591, cited by Binnie J. at paragraph 57 of Gibbens, the insured fell from his horse onto a wet surface, and subsequently developed pneumonia, from which he later died. Although the insured had died from the disease of pneumonia, his death was found to be covered by the accidental death policy at issue since “[t]he fatal pneumonia was a ‘sequela’ of the accident”. 

[29]           In contrast to cases like Etherington, the accident in the present case did not cause the disease. Rather, it was the disease that caused the accident. That is, a naturally occurring cardiac event caused Mr. Downey to fall out of the boat and into the water where he drowned. The following passage from Manufacturers’ Acc. Indem. Co. v Dorgan, 58 F. 945 (1893) accurately encapsulates the principles reflected in the cases which address this sort of scenario: 

We are of the opinion that in the legal sense, and within the meaning of the last clause, if the deceased suffered death by drowning, no matter what was the cause of his falling into the water, whether disease or a slipping, the drowning, in such case, would be the proximate and sole cause of the disability or death, unless it appeared that death would have been the result, even had there been no water at hand to fall into. The disease would be but the condition; the drowning would be the moving, sole, and proximate cause. 

After analysis of relevant case law, the Court determined that the deceased did not die from any naturally occurring internal condition (ie. Myocardial infarction), which brought him within the ambit of the policy. The burden then shifted to the Defendant to prove the exclusion clause was enforceable.  

The Court differentiated this case from other cases cited, due to the broader wording of the exclusion clause in this scenario: 

[38]           The Plaintiff points out that, like the exclusion clause at issue in Kerr, the exclusion clauses in the Policies refer to the insured’s death as opposed to the accident which resulted in death. Since Mr. Downey’s death was caused solely by drowning, the contribution of any cardiac event to the occurrence of the accident is said to be immaterial for the purposes of the exclusions. 

[39]           Although I am in general agreement with the analysis in Kerr, I find it to be inapplicable to the present case. Whereas the exclusionary clause in Kerr applied only to death or injury “caused directly or indirectly” by disease, the exclusionary clauses in the Policies go much further in that they exclude coverage for death which “resulted directly or indirectly from, or was in any manner or degree associated with or occasioned by” the disease, and further exclude coverage if the disease “contributed in any way whatsoever to Your death”. None of the cases cited by the parties contain exclusionary language of this breadth. 

 The Court found no ambiguity in the exclusion clause, and found the clause was enforceable: 

[42]           Turning to the exclusion clauses in the present case, I do not find the language of those clauses to be ambiguous, and therefore do not resort to the principles of construction examined in such cases as Ledcor. Like the Ontario Court of Appeal in Farmer, I find that the plain meaning of those clauses excludes coverage for Mr. Downey’s death since his death was sufficiently connected to a naturally occurring cardiac event. Although the cardiac event did not itself kill Mr. Downey, it cannot be said that that his death was not “in any manner or degree associated with or occasioned by” the cardiac event. Further, it cannot be said that the cardiac event did not “contribute[] in any way whatsoever” to Mr. Downey’s death. 

[43]           In conclusion, although the naturally occurring cardiac event experienced by Mr. Downey was not a physiological or medical cause of his death, it did cause him to fall into the lake, and also deprived him of his ability to swim to shore, which in turn caused him to drown. Hence, although his death was not “caused” by the cardiac event, his death was “associated with” and “occasioned by” the cardiac event. The cardiac event also “contributed”, at least in this “way”, to his death. Consequently, the Policies’ exclusion clauses exclude coverage for this loss. 

The Court also rejected the Plaintiff’s assertion that the exclusion clause was too broad as to nullify coverage under the policy and be contrary to the reasonable expectations of the policy holder: 

[47]           Firstly, the exclusion clauses do not virtually nullify the coverage provided by the Policies. The policies continue to cover losses caused by accidental bodily injuries that are unconnected to a naturally occurring disease or infirmity. The losses resulting from many accidents remain covered by the Policies. Secondly, given that the insureds were not required to undergo any medical examinations in order to obtain coverage, it cannot be said that excluding coverage for bodily injuries associated with or occasioned by pre-existing medical conditions would be contrary to the reasonable expectations of the ordinary person as to the coverage purchased. 

[48]           In conclusion, I do not find that the exclusion clauses are so broad as to render them unconscionable or otherwise unenforceable. 

As a result, the Plaintiff’s claim was dismissed.