2013 QCCQ 1490, 2013 QCCQ 1490

Neale c. Personal General Insurance Inc. 2013 QCCQ 1490 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-124240-104 DATE: February 12, 2013 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ JASON PETER NEALE […], Beaconsfield (Québec) […] Plaintiff v.

THE PERSONAL GENERAL INSURANCE INC. 1, Complexe Desjardins, bureau 1722, Montréal (Québec) H5B 1B1 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Jason Peter Neale is claiming $6,428.54 from The Personal General Insurance Inc. (“The Personal”) for damage to his car, which occurred in an accident. The Personal maintains that the majority of the items claimed are not related to the accident. The evidence: [ 2 ] On September 3, 2009, Mr.

Neale’s wife accidently drove over a concrete slab divider in a parking lot and backed up over the same divider, several inches high and 6 to 7 feet long. Mr. Neale’s 2001, Audi was damaged. He immediately had the damage to the brake callipers repaired. He said he had done this repair so that the car could be driven. [ 3 ] Mr. Neale filed a claim with the Personal on September 28 th . The delay was due to his absence for most of the month of September. Arrangements were made with Mr.

Nichols, a claims adjuster, to examine the car on October 9, 2009. [ 4 ] The examination took place at a garage chosen by The Personal. Mr. Neale did not hear from The Personal until October 23rd, when he received a cheque for the repairs, amounting to $1,386.80 [1] . Since Mr. Neale had been told by the garage that the repairs would come to some $4,000, he considered that an error had been made with respect to the amount. He called and left messages with Ms.

Boutin, the claims adjuster, and faxed her copy of an estimate for his repairs that he had obtained from Gabriel Prestige Porsche Audi Volkswagen. [ 5 ] In his attempts to determine the status of his file, he learned it had been transfered to Mr. Ruccia. After leaving him ten messages, Mr. Neale was told by Mr. Ruccia that his file had been transferred to Mrs. Trépanier. [ 6 ] Mr. Neale was unable to reach Mrs. Trépanier. He e-mailed and contacted The Personal’s customer service. He was later told that his file had been transferred to Ms. Joanette.

Following further phone calls and e-mails, on February 15, 2010, Mr. Neale was advised by The Personal that no further amount would be paid. [ 7 ] On March 19, 2010, Mr. Neale met with the claims manager and provided her with estimates of two different garages. On April 1, 2010, The Personal re-iterated its refusal to pay for the headlight repair and break callipers but agreed to cover the cost of the damage to his right tire and his wheel alignment.

[ 8 ] It also agreed to cover the lid and the lower grids of the bumper and the left and right handed side wing linings and the cylinder head cover, although according to Mr. Neale, not all these items were damaged. [ 9 ] Mr. Neale called the claims manager on April 27 th to learn that his file had been transferred once again to another representative. He then sent a demand letter and filed the present action. [ 10 ] Ms. Boutin, the claims adjuster, explained the file was transferred since she was not bilingual nor was Ms. Vaillancourt. She claimed she had never received the repair estimates sent by Mr.

Neale or his photographs, a fact Mr. Neale denied. [ 11 ] Mr. Nichols carried out the appraisal for The Personal. He noted that the front bumper and fenders had been in a previous accident. He explained that he did not consider the claim for the two front wheel cylinders to be related to the accident since the break cylinders are hidden by the wheels and are protected by the wheel and the suspension. According to Mr. Nichols, the cylinders cannot receive the impact by the collision, as it was described by Mr. Neale. [ 12 ] As for the head lamps, which have plastic lenses, Mr.

Nichols claimed they had been exposed to the sun and UV, which leads to the seal between the lens and the housing drying up; with a hairline crack, which develops over time, humidity builds up. He had no explication for the lights being out of alignment. Finally, he submitted that an estimate for repairs does not mean the damage is related to the alleged accident. Analysis: [ 13 ] The Personal sent Mr. Neale a cheque for $1,386.80, representing $1,886.80 less the $500 deductible, a cheque of $444.60 for the damage to his tire and $150 for 3 days of a car rental during the repair. Mr.

Neale returned all the cheques. [ 14 ] Mr. Neale is claiming the following amounts: - $4,843.11 based on an estimate from Gabriel Prestige Porsche Audi Volkswagen (which includes the headlights, bumper, lower grill, wheel alignment, left and right side wing linings, material, paint and labour). - $394.30 for a tire/rim damage estimate - $641.13 for brake calliper pin damage repair - lower headlight damage (TBD) - $500 rental car expenses (based on 10 days) - $50 for tire/rim removal/balance test Total: $6,428.54 [ 15 ] The Personal agreed to pay to repair the damage to all the items claimed by Mr.

Neale with the exception of the damage to the break callipers, the headlights and the lower headlights or fog lights. Mr. Neale is seeking compensation to cover the cost to repair these items. [ 16 ] With respect to two front wheel break cylinders, Mr.

Nichols did not consider the claim to be related to the accident since the brake cylinders are protected by both the wheel and suspension and would not be subject to the impact, as described. [ 17 ] In the absence of any expertise to the contrary, the Court accepts that the two front wheel break cylinders are not related to the accident and accordingly no compensation is awarded for these items. [ 18 ] The same applies to the headlights. The evidence shows that the change in colour is related to age, due to UV exposure. Again, no expertise was provided to establish that the explanation provided by Mr.

Nichols is not valid and therefore the cost of replacing the headlights is not granted. [ 19 ] Mr. Neale’s final claim statement lists damage to the lower headlights. His estimate for repairs does not include this item and the photographs provided do not show any damage to the lower headlights. In the absence of any evidence with respect to this item, no amount is awarded. [ 20 ] The estimate obtained by The Personal from its garage comes to $1,886.81 (Exhibit D-3). Mr. Neale provided an estimate from Gabriel Prestige Porsche Audi Volkswagen for $4,843 (Exhibit P-1).

No evidence was provided to indicate that he cannot have his vehicle repaired at a garage he chooses. Given this fact and having noted that the prices for that garage and the one selected by The Personal are very similar, the Court will use the estimate provided in Exhibit P-1 as a basis for the amount payable to Mr. Neale but will remove from the calculation those items, indicated above, which the Court has not granted. [ 21 ] The total amount listed for the parts ($3,442.98) less the cost of the lights comes to $1,329.20. The inclusion of paint and material brings the cost to $1,480.07.

As for labour, the Court took the average hourly rate listed by Gabriel Prestige Porsche Audi Volkswagen, namely $65 per hour, for a total time of 6.6 hours (the time estimated by The Personal’s garage since the labour for the repair of the headlights is not granted). The labour cost comes to $429. The cost for parts, material and labour are $1,909.07, plus tax for a total of $2,154.86.

[ 22 ] The amount of $444.60, already accepted by The Personal, is granted for the damage to a tire. [ 23 ] With respect to rental costs, Mr. Neale has not provided any evidence as to the length of time required to repair his car. In the absence of any indication as to the delays involved, the Court grants $150, namely the cost which was estimated by The Personal. [ 24 ] Therefore the total amount to which Mr. Neale is entitled to for the cost of his car repair and rental comes to $2,749.50, less the $500 deductible, for a total of $2,249.50.

FOR THESE REASONS, THE COURT: GRANTS , in part, the motion to introduce proceedings; CONDEMNS The Personal General Insurance Inc. to pay Jason Peter Neale $2,249.50 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec since the demand letter plus judicial fees of $157. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: January 14, 2013