2017 QCCQ 7321, 2017 QCCQ 7321

Estate of Harper c. RBC Insurance Company of Canada 2017 QCCQ 7321 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-149105-159 DATE: June 28, 2017 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ THE ESTATE OF THE LATE CAROLE HARPER Plaintiff v.

RBC INSURANCE COMPANY OF CANADA Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] GIVEN the evidence, including the testimony of Andrew Harper and Lisa Voisin, as well as exhibits P-1 to P-10 and D-1 and D-4 and the written statement in lieu of testimony of Dr.

Ehsan Esmaeili; [ 2 ] WHEREAS the late Carole Harper (“Harper”) died on October 31, 2015; [ 3 ] WHEREAS the Estate of the late Carole Harper filed a notice of continuance of proceeding; [ 4 ] WHEREAS the following is alleged in the application: “ The Plaintiff hereby declares that: 1. The Plaintiff is suing the Defendant for the following reasons: The Defendant sold a travel insurance policy to the Plaintiff prior to her departure to Florida for a few months. While in Florida, the Plaintiff underwent emergency surgery for a fractured left wrist.

She was obliged to spend CAN $8,675.20 comprising the following amounts: (

a) Consultation by Dr. Alan Saperstein for an amount of US $165.00; (

b) Consultation by Dr. Ehsan Esmaeili for an amount of US $165.00; (

c) Surgery by Dr. Ehsan Esmaeili for an amount of US $3,000.00; (

d) Hospital charges for an amount of US $2,965.00; and (

e) Fee for anesthesia for an amount of US $700.00; for a subtotal of US $6,995.00 being the aggregate of items (

a) to (

e) hereof. To this subtotal, there is the currency exchange that was paid upon the aforesaid amount of US $6,995.00 at February 17, 2015

amounting to CAN $1,680.20. The Plaintiff also claims an amount of CAN $1,500.00 for troubles and inconveniences. Hence, the total claim is CAN $10,175.20. The Defendant refuses to pay this amount of CAN $10,175.20; the whole in breach of its contract with the Plaintiff. 2. The facts occurred on or around February 17, 2015, at Boca Raton (Florida), United States. 3. The amount of the claim is $10,175.20. 4.

Although payment has been duly requested by means of a formal notice, the Defendant has refused or failed to pay.” [ 5 ] WHEREAS a travel insurance contract intervened between Harper and defendant, on February 6, 2015 (contract, exhibit P-1); [ 6 ] WHEREAS , on February 6, 2015, Harper, who was travelling to Florida with her husband Andrew Harper (“Andrew”), fell at the airport and injured her left hand/wrist; [ 7 ] WHEREAS , although her wrist was sore, Harper nonetheless chose to travel; [ 8 ] WHEREAS , on February 7 or 8, 2015, “the effects of the fall fully manifested themselves”; [ 9 ] WHEREAS , on February 8, 2015, Harper sought treatment at the Boca Raton Hospital, and was diagnosed with a fractured left wrist; [ 10 ] WHEREAS , on February 9, 2015, Harper saw another doctor, who confirmed the diagnosis; [ 11 ] WHEREAS , on February 10, 2015, Harper consulted a hand specialist Dr.

Ehsan Esmaeili, who “advised that the healing process (would) take long and that the best process (would be) minor surgery” at a cost of approximately $6,700.00 U.S.D.; [ 12 ] WHEREAS , on February 13, 2015, Andrew called defendant to advise of the above, and was advised by defendant that surgery would require preauthorization and medical documentation; [ 13 ] WHEREAS , on February 14, 2015, defendant advised Andrew that it had not yet received the requested documentation, and that the surgery did not constitute emergency care; [ 14 ] WHEREAS defendant then offered to bring Harper home; but Andrew refused defendant’s offer, stating that his wife could not wait for the surgery, and that, based on his previous experience, “the system in Canada (was) too slow”; [ 15 ] WHEREAS , on February 16, 2015, Dr.

Esmaeili completed a confirmation of fitness to travel form, and forwarded it to defendant (exhibit P-2); [ 16 ] WHEREAS , according to said form, Dr. Esmaeili deemed Harper fit to travel at that time (section 1);

section 5, relating to medical contraindications to travel, was in fact left blank; [ 17 ] WHEREAS , on February 16, 2015, defendant contacted Dr.

Esmaeili’s office with a view to ask if Harper could have surgery in Canada, if defendant arranged to bring her home, accompanied by medical personnel; [ 18 ] WHEREAS , at that time, the doctor’s office confirmed that Harper was indeed fit to travel, and that it was up to Harper to decide where she wanted to undergo surgery; [ 19 ] WHEREAS Harper had already paid for the surgery, which was scheduled for and took place on February 17, 2015; [ 20 ] WHEREAS , after surgery, Harper submitted a claim to defendant; [ 21 ] WHEREAS defendant determined, and advised Harper accordingly, that her loss was only partially covered for the following reasons: “Dear Carole Harper: Subject: Case 1846225 Thank you for submitt ing your claim under your RBC cre dit card.

After careful review, we have determined your loss is only partially covered based on the terms and conditions of the certificate of insurance and the information provided. The medical treatments you received on February 16th, 2015 and onwards were related to your left wrist fracture. However, Assured Assistance Inc. informed you that any further treatment you received for that injury after February 14, 2015 would not be covered. Therefore the related expenses are not covered under this claim. The specific certificate wording that follows is in reference to the Out of Province/Country Emergency Medical Insurance

section of your certificate of insurance: WHAT IS NOT COVERED?

GENERAL EXCLUSIONS The Insurer will not pay for any expenses incurred directly or indirectly as a result of: 2. The continued treatment, investigation, recurrence or complication of a medical condition following emergency treatment for that medical condition during your trip if the medical advisors of Assured Assistance determine that you were medically able to return to your province or terr itory of residence and you chose not to return. If you have any questions, please contact me directly at 1 (888)506-4689, extension 244062 between the hours of 1-888-506-4689 EST Monday to Friday. Sincerely, (sig.

Zishan Siddiqui Claims Department” (letter dated May 6, 2015, exhibit P-3) hence plaintiff’s recourse; [ 22 ] GIVEN Dr.

Esmaeili’s assessment that Harper was fit to travel before the surgery took place; [ 23 ] WHEREAS the surgery did not constitute “Emergency treatment” under the policy, and was excluded under the policy: “ Emergency treatment means any treatment, surgery or medication that: ■ is required for the immediate relief of an acute symptom; or ■ upon the advice of a physician cannot be delayed until you return to Canada, and has to be received during your trip because your medical condition prevents you from returning to Canada.

The emergency treatment must be ordered by or received from a physician or received in a hospital during your trip. “ “ GENERAL EXCLUSIONS The Insurer will not pay for any expenses incurred directly or indirectly as a result of: […] 2.

The continued treatment, investigation, recurrence or complication of a medical condition following emergency treatment for that medical condition during your trip if the medical advisors of Assured Assistance determine that you were medically able to return to your province or territory of residence and you chose not to return.” […] (insurance certificate, pages 9 and 14 respectively, exhibit D-1) [ 24 ] WHEREAS , however, the initial consultations and related fees are expenses covered by the policy; [ 25 ] WHEREAS the Estate did not cash defendant’s cheque (exhibit P-3); [ 26 ] WHEREAS , according to the preponderance of evidence, defendant acted in accordance with the terms and conditions of the policy, and did not breach its contractual obligations towards Harper; WHEREFORE THE COURT HEREBY: GRANTS plaintiff's application, in part; ORDERS defendant to issue another cheque made to the order of the Estate of the late Carole Harper with a view to replace its cheque no. 01912425, in the amount of $393.72 (exhibit P-3), with added legal interest and the legal indemnity provided for in

article 1619 of the Civil Code of Quebec , from May 6, 2015; EACH PARTY paying its own costs. __________________________________ ELIANA MARENGO, J.C.Q.

Date of hearing: June 20, 2017