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Saturday, October 14, 2017

 
 
 

 
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Smitiuch Injury Law Wins FSCO Decision: Swerving on a Bicycle to Avoid Vehicle is an “Accident”

Smitiuch Injury Law recently won an arbitration decision, DiMarco and Chubb Insurance Company, at the Financial Services Commission of Ontario (FSCO) regarding what is deemed to be an “accident”.

Marilena DiMarco was riding her bicycle on a training ride for a charitable event when she and her group went through a town that was having a street festival.  Because the street was closed the group rode their bicycles on the sidewalk.  A van was parked half-way on the sidewalk.  When Ms. DiMarco swerved to avoid the van, she lost her balance and fell, hitting the van with her hand in the process.  Chubb Insurance refused to accept the incident as a “motor vehicle accident” as defined in The Insurance Act and Statutory Accident Benefits Schedule (SABS) and refused to pay for badly-needed treatment and other accident benefits.

Arbitrator Deborah Pressman stated the following:

In this case, Ms. DiMarco was compelled to manoeuvre on the sidewalk around a vehicle that was parked in her way.  This automobile set in motion a chain of events directly resulting in Ms. DiMarco’s fall from the bicycle.  There was no intervening act that caused Ms. DiMarco to fall.  There were no other impediments around the automobile or near Ms. DiMarco.  Therefore, there was a direct and proximate cause between the “use or operation” of the automobile and Ms. DiMarco’s injuries.

Peter Cho, an associate lawyer at Smitiuch Injury Law Professional Corporation, represented Ms. DiMarco at the arbitration hearing.  He was assisted by Chris Jackson, Accident Benefits Manager.

The decision can be read by clicking on the attached.  DiMarco and Chubb Insurance Company of Canada FSCO Decision A10-003967

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