Paul Fletcher Plaintiff And: Royal & Sun Alliance Insurance Company of Canada Defendant, 2017 BCSC 1330

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Fletcher v. Royal & Sun Alliance Insurance Company of Canada, 2017 BCSC 1330 Date: 20170728 Docket: 12-0944 Registry: Victoria Between: Paul Fletcher Plaintiff And: Royal & Sun Alliance Insurance Company of Canada Defendant Before: The Honourable Madam Justice Dorgan Reasons for Judgment Counsel for the Plaintiff: M. J. Velletta and C. Christie Counsel for the Defendant: N. C. Carfra Place and Date of Trial/Hearing: Victoria, B.C. January 23 and 24, 2017 Place and Date of Judgment: Victoria, B.C.

July 28, 2017 [ 1 ] The plaintiff, through his employment, is part of a group insurance plan offered by the defendant, which plan provides coverage for out-of-province and out-of-Canada emergency travel medical care expenses. The plaintiff incurred medical expenses while travelling outside of Canada for which he made a claim. The defendant denied his claim. This case involves the

interpretation of the relevant provisions of the policy in issue. [ 2 ] The matter came before the court pursuant to Rule 9-7. The parties took the position that the matter was suitable to be tried by

summary trial. I agree with those submissions. Factual Background [ 3 ] The underlying facts in this case are not in issue. The group insurance plan under Policy No. 32448014 (the “Policy”) was valid at all material times. The plaintiff says he obtained the Policy sometime between 2004 and 2006 and that he had travelled out of province and out of country many times without making a claim. On the face page, the Policy is described as follows: The travel insurance under this policy is designed to cover losses arising from sudden and unforeseeable circumstances occurring while an Insured Person is temporarily travelling outside his province or territory of residence. [ 4 ] Policy

Section II - “Benefits” reads: The policy covers expenses that are: • Incurred outside the province or territory of residence of the insured person ; • medically necessary ; • reasonable and customary costs ; • incurred as a result of an emergency due to sudden and unforeseen sickness and/or injury occurring during the coverage period ; … [ 5 ] Policy

Section III - “Exclusions” reads: The policy does not cover losses or expenses related in whole or in part, directly or indirectly, to any of the following: …

4. Any medical condition for which prior to departure, medical evidence suggests a reasonable expectation that treatment or hospitalization could be required while travelling. [ 6 ] It is agreed between the parties that the Policy, as it relates to the plaintiff, contains no exclusion for a pre-existing medical condition per se and that the operative exclusionary provision in this case is that in

Section III, para. 4 above. [ 7 ] The plaintiff asserts his claim on the basis that he left Canada in March 2011 on a trip to Mexico after consulting his medical doctors about his medical condition and being satisfied that it was safe for him to travel. The plaintiff submits the medical emergency expenses which arose during the trip are covered by the benefits

section of the Policy and that based on the medical advice and information he had prior to departure, the exclusion clause does not apply. [ 8 ] In support of this position, the plaintiff relies on his clinical medical records and reports, and letters of the physicians involved in his treatment and care prior to departure. [ 9 ] The defendant argues the exclusion clause applies in that there was medical evidence to suggest there was a reasonable expectation that treatment or hospitalization could be required while travelling.

In support of that argument, the defendant relies on the medical opinion of a cardiologist, Dr. Isserow, found in his report dated November 10, 2016. [ 10 ] Dr. Isserow has never treated the plaintiff. Dr. Isserow’s report, written five and one-half years post-medical treatment, is based on his review of the plaintiff’s medical records and the reports and letters of his treating physicians. His report contains a critique of the diagnosis given by the plaintiff’s physicians prior to the plaintiff’s travel. In Dr.

Isserow’s opinion, the plaintiff’s condition prior to travel was neither stable nor benign and that as a result, his diagnosis differs significantly from that given by the plaintiff’s medical advisors. In Dr. Isserow’s opinion there was indeed a reasonable expectation that treatment or hospitalization could be required while travelling. [ 11 ] At the outset of this trial, the plaintiff objected to the admissibility of Dr. Isserow’s report. In response, the defendant objected to the admissibility of Dr.

Rimmer’s letter dated September 22, 2011, addressed “To Whom It May Concern” (Exhibit F to the Fletcher affidavit sworn December 28, 2016) and the letter of Dr. Vuurmans dated September 29, 2011, addressed to the plaintiff (Exhibit G to the same Fletcher affidavit). These letters were obviously written at the behest of Mr. Fletcher as part of his medical travel insurance claim process. [ 12 ] Further, the defendant objected to paras. 14 and 15 of the Fletcher affidavit as hearsay.

However, I am satisfied this evidence is admissible as forming part of the narrative relevant to the issue to be decided. [ 13 ] The plaintiff eventually withdrew his objection to the admissibility of the Isserow report. During the trial, I ruled that Exhibits F and G could be before the court and that I would rule on the defendant’s objections to their admissibility at the conclusion of the trial. [ 14 ] Dr. Isserow’s report and the two medical letters the defendant objects to were written well after the fact of the plaintiff’s serious medical emergency which arose while travelling.

In all three documents, opinions are expressed which go directly to the wording of the exclusion clause; that is, was there, prior to the plaintiff’s departure, medical evidence that suggested a reasonable expectation that he could require treatment or hospitalization for his medical condition? [ 15 ] Dr. Isserow emphatically states his opinion that the answer to that question is yes. Dr. Rimmer writes the plaintiff’s condition was stable prior to departure, he was receiving appropriate medical therapy, and that imminent hospitalization was not expected. Dr.

Vuurmans states that a patient with the plaintiff’s condition, awaiting angiography as an out-patient, would not probably require urgent medical attention prior to the angiography and there would be “no strict contraindication to travel.” [ 16 ] I am satisfied that Exhibits F and G are admissible. The defendant’s objection to their admissibility was based on these exhibits containing opinions, which they undoubtedly do, but was an argument in response to the plaintiff’s initial objection to the admissibility of the Isserow report because it contained an opinion.

Once the objection to the Isserow report based on it being an opinion was withdrawn, the defendant’s responding objection was not so compelling. [ 17 ] In any event, the issue for the court to determine is whether the plaintiff’s claim is barred by the exclusion clause. Exhibits F and G attempt to address that question as does the Isserow report. The answer to that question is the ultimate issue. Accordingly, the weight given to Exhibits F and G and indeed to Dr. Isserow’s report is for the court to determine in light of all of the evidence adduced at trial.

Pre-travel Medical Evidence [ 18 ] In early October 2010, the plaintiff began to experience occasional chest discomfort upon exertion. He consulted his family doctor, Dr. Rimmer, on October 15, 2010. Dr. Rimmer referred the plaintiff for a treadmill test which was completed in November 2010 by Dr. O’Malley, an internist. [ 19 ] On November 16, 2010, Dr. O’Malley wrote a reporting letter to Dr. Rimmer advising that the plaintiff had significant coronary risk factors, but no evidence of current pulmonary disease. He wrote that the results of the treadmill test were suggestive of ischemia. According to Dr.

O’Malley’s letter, the plaintiff had “no high risk features that would make urgent angiography necessary.” Dr. O’Malley suggested that the plaintiff consider a referral for primary angioplasty and consider medication in advance of such a procedure, namely, aspirin, statins and a beta-blocker, all of which was to be discussed further with Dr. Rimmer. [ 20 ] According to the plaintiff’s evidence, he consulted with Dr. Rimmer after the treadmill test. They discussed pursuing an angiograph and possibly a stent. He was told by Dr. Rimmer that his symptoms were consistent with stable angina. [ 21 ] Dr.

Rimmer arranged for a consult with Dr. Vuurmans, a cardiologist, on January 11, 2011. According to Dr. Vuurmans’ follow-up report dated January 11, 2011, he diagnosed the plaintiff with stable angina. Dr. Vuurmans confirmed that further medical

options such as medication or the possibility of coronary angiography would be discussed with Dr. Rimmer. [ 22 ] According to that report, Dr. Vuurmans advised the plaintiff that if he had symptoms of chest pain while at rest he should use nitroglycerin tablets and, failing relief, to go to emergency. [ 23 ] On February 9, 2011, the plaintiff spoke with Dr. Vuurmans by telephone regarding symptoms which had again arisen. Again, he was told by Dr.

Vuurmans to take the nitroglycerin medication in the face of persistent chest pain and if the pain did not subside to call 911. [ 24 ] On February 11, 2011, the plaintiff spoke with Dr. Rimmer. On Dr. Rimmer’s recommendation, the plaintiff concluded that he would proceed with an angiograph to investigate the angina further. Dr. Rimmer arranged for the plaintiff to be placed on a non-urgent wait list for coronary angiography. [ 25 ] The plaintiff had a planned trip to Mexico departing Canada on March 7, 2011 and returning March 21, 2011. In preparation for that trip, he consulted Dr.

Rimmer on March 1, 2011 to discuss his travel plans. Dr. Rimmer advised the plaintiff that his condition was stable and that the angiograph could be proceeded with once he returned from the trip. [ 26 ] The plaintiff’s evidence is that he also consulted Dr. Vuurmans prior to departure to discuss risks, if any, that travel might bring to his condition and to ask whether his angiogram could be rescheduled to a date after his return to Canada. The plaintiff says Dr.

Vuurmans agreed to postpone the angiogram until his return to Canada and confirmed that he was all right to travel. [ 27 ] According to the evidence of the plaintiff, based on the advice of his doctors, he was satisfied his angina was stable, that it was safe for him to travel and that there was no reasonable likelihood that he could require emergency treatment while travelling.

Further, his evidence is that: If, after consulting my family doctor and my cardiologist, I thought there was a risk of having a medical emergency while traveling I would have cancelled my trip and stayed home and close to my usual doctors. Emergency Medical Treatment [ 28 ] The plaintiff did travel to Mexico. After about three days into the trip, he began to experience consistent chest pain which he felt was not subsiding even with use of nitroglycerin tablets. He and his travelling companion made arrangements for an early return to Canada.

On March 14, 2011, they left on a flight with a scheduled stop in Seattle. [ 29 ] During the return flight, the plaintiff’s symptoms worsened. As a result, upon touchdown in Seattle, he left the plane and was transported by ambulance to a Seattle hospital where a cardiologist diagnosed, “severe three-vessel coronary artery disease.” He was transferred to a cardiac intensive care unit at the Swedish Medical Center in Seattle where he underwent emergency coronary artery bypass surgery.

He remained at the hospital until March 19, 2011 when he returned to Canada. [ 30 ] The cost of the plaintiff’s medical treatment in Seattle was $181,140.49 USD. The plaintiff made a claim under his emergency travel insurance. The claim was denied by the defendant’s agent, Global Excel Management Inc. On this

summary trial, the plaintiff seeks: A. judgment against the defendant for $181,140.49 USD or its equivalent in Canadian currency; B. interest; and C. costs. [ 31 ] In his Notice of Civil Claim, the plaintiff claims general, special and punitive damages, interest and costs. [ 32 ] The defendant seeks to have the plaintiff’s claim dismissed. The Law [ 33 ] The weight of the authorities is that the onus is first on the insured to prove that a loss falls within the subject policy. If the insured meets that onus, the insurer then has the onus to prove the exclusion clause applies.

If so proved, the insured bears the onus of proving an exception to the exclusion clause applies: see, Wynward Insurance Group v. MS Developments Inc. , 2016 BCCA 513 at para. 19 ; see also, Dawson Truck Repairs Ltd. v. Insurance Corporation of British Columbia , 2008 BCCA 209 at para. 13 . [ 34 ] The parties are in agreement that the leading case regarding

interpretation of insurance contracts is Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada , 2010 SCC 33 . While I do not disagree, I note that the specific principles stated therein are of assistance in resolving ambiguities in the terms of the policy. However, as also stated in Progressive Homes , where the language of the policy is unambiguous, as is the case here, the court should give effect to the clear language of the policy as a whole. [ 35 ] Considering the law and the evidence, I make the following findings: 1. The language of the policy is unambiguous. 2.

The Policy provided coverage for costs incurred as a result of a medical emergency which might arise while travelling. The plaintiff incurred such costs. The plaintiff had the requisite coverage for the costs he incurred and for which he now seeks judgment. 3. The plaintiff was treated for the condition giving rise to his claim, by Drs. Rimmer, O’Malley and Vuurmans in the one and one-half years prior to travel.

4. Following the treadmill test, and in further consultation, the diagnosis of both Dr. Rimmer and Dr. Vuurmans was that theplaintiff’s condition was one of stable angina. 5. As a follow-up to that diagnosis, the plaintiff was placed on a non-urgent waitlist for coronary angiography andprescribed medication in preparation for that procedure. 6. The plaintiff was prescribed nitroglycerin tablets to be used if his chest symptoms continued even while at rest. Up to thepoint of his departure for Mexico, the plaintiff had never been required to use the nitroglycerin. 7.

At no time prior to his departure was the plaintiff diagnosed with severe artery disease, nor was he advised he couldreasonably expect to undergo a coronary artery bypass surgery or of diagnoses and procedures which might necessitate emergencytreatment and hospitalization while travelling. 8. Prior to the departure date of his planned trip, the plaintiff prudently consulted Drs. Rimmer and Vuurmans about hishealth and how travel might impact his condition. There is no evidence that either of his treating physicians advised against his proposedtrip. In fact, Dr.

Vuurmans agreed the scheduled angiography appointment could be postponed until the plaintiff’s return. This actionalone satisfies me that the plaintiff’s condition was considered to be stable and that his proposed travel would not pose any increasedrisks to his health. 9. While Dr. Isserow’s opinion is that the plaintiff’s pre-travel condition was not stable (suggesting the medical recordswould have led him to diagnose progressive or crescendo angina rather than stable angina), Dr.

Isserow was not the plaintiff’s treatingphysician and obviously, his opinion did not form part of the “medical evidence” regarding the plaintiff’s pre-travel medical condition. 10. While Dr. Isserow states in his report that Dr. Vuurmans’ note, dated February 9, 2011, essentially states that “Mr.Fletcher has progressive or crescendo angina pectoris”, I disagree. I refer to Dr. Vuurmans’ February 9, 2011 follow-up letter to Dr.O’Malley which states, “Mr.

Fletcher is a pleasant 57 year old gentleman with stable angina.” Stable angina, not progressive orcrescendo angina, is the only stated diagnosis in the letter. 11. While the defendant criticizes the plaintiff for not discussing his travel insurance with his medical advisors prior to travel,in my view, nothing turns on that fact. He consulted his medical advisors for opinions about his health before he went travelling, not fortheir opinion regarding his travel insurance coverage. 12.

The plaintiff’s evidence is that following consultations with his treating physicians, he was satisfied the trip would pose norisk to his health and that it was safe for him to travel. There is no evidence he had medical evidence or opinion to the contrary. 13. I accept the plaintiff’s evidence that if he thought he was at risk of having a medical emergency while he was away, hewould have cancelled his trip. 14.

I am satisfied that the plaintiff’s trip was undertaken in circumstances in which he and his treating physicians were awareof his pre-travel medical conditions, aware of the medical information, tests and diagnoses to that date (i.e. the available “medicalevidence”), and that they reasonably concluded the proposed trip posed no reasonable expectations of risk to his health.

It follows thatthe pre-travel medical evidence did not suggest a “reasonable expectation that treatment or hospitalization could be required whiletravelling.” Conclusion [36] Pursuant to the Policy with the defendant, the plaintiff had coverage for the costs of emergency medical treatment requiredwhile travelling. The exclusion clause in the Policy does not apply. [37] As to remedy, the plaintiff claims damages -- a judgment -- in the amount of the Canadian dollar equivalent of his unpaidhospital bills.

The defendant argues that if liability is found, and since the plaintiff has been unable to pay the invoices for his medicalexpenses, the Court ought not to give the plaintiff personal judgment, but rather it should make a declaration of indemnity. [38] In support of this argument, the defendant submits the insurance policy is a contract of indemnity and further, suggests that theplaintiff may not pay the American hospital or alternatively, that limitation periods in the State of Washington may preclude a claimagainst the plaintiff, either of which would result in unjust enrichment. [39] In response, the plaintiff relies on the case of Falvo v.

Allstate Insurance Co. of Canada, (O.N. S.C.), aff’d,2009 ONCA 334, as an example of the courts not being prevented from ordering that an insurer pay a plaintiff the amount of his unpaidmedical bills. While I agree that such was the result in Falvo, I note that no substantive argument on this point was apparently made, ortaken up, by the Ontario Superior Court of Justice, or by the Ontario appellate court on appeal. I do not find the Falvo decision to beparticularly instructive or persuasive on this issue.

Finally, since the Washington State limitation legislation and its applicability are notissues squarely before this Court, the defendant’s argument in that regard is not persuasive. [40] An insurance contract by its nature is a contract of indemnification. I am satisfied that pursuant to the insurance policy, theplaintiff is entitled to be indemnified for expenses incurred. Damages are an inappropriate remedy. The Order [41] Accordingly, I declare that the defendant indemnify the plaintiff for all incurred expenses described in the Policy

Section II -Benefits which arose from his medical emergency and the consequent medical treatment he received in Seattle, Washington from March14, 2011 to March 19, 2011 inclusive. [42] I find the plaintiff is the substantially successful party and is therefore entitled to costs.

“J. L. Dorgan, J.” The Honourable Madam Justice Dorgan