2012 QCCQ 14925, 2012 QCCQ 14925

Burstein c. Allstate Insurance 2012 QCCQ 14925 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-121293-106 DATE: December 19, 2012 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ SAMUEL BURSTEIN ROSALIE NISN BURSTEIN [...] Westmount (Québec) [...] Plaintiffs v.

ALLSTATE INSURANCE 7100, Jean-Talon Est, suite 120, Anjou (Québec) H1M 3S3 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Samuel and Rosalie Burstein are claiming $3,351.22 from Allstate Insurance, since it refused to reimburse the total amount they paid for a rental car, during the repair of their vehicle. Allstate contests the claim. It submits it agreed to pay a maximum cost of $175 per day for a replacement vehicle. It refuses to pay the expense incurred by the Bursteins for a second driver.

The evidence: [ 2 ] Mrs. Burstein suffered an automobile accident on June 26, 2009. The repair took three months and a week. The Bursteins' vehicle was insured with Allstate. According to their policy, they are entitled to rent a comparable substitute vehicle, during their car’s repair. No limit is foreseen regarding the rental cost. [ 3 ] At the outset, Allstate restricted the rental cost to $60 per day. After concluding that Mrs. Burstein was not responsible for the accident, she was permitted to rent a car comparable to her damaged one. Mrs.

Burstein rented a Mercedes SL convertible from Montreal Exotic Car Rentals, which cost $175 per day. [ 4 ] Mrs. Burstein's husband informed Allstate of this amount. After consulting Exotic, Allstate accepted to pay $175 per day. [ 5 ] At the outset, Mrs. Burstein’s daughter was listed as a driver. Allstate advised Mrs. Burstein that her daughter was not covered under the insurance policy. Her name was then removed from the rental contract, listing only Mr. Burstein as a driver. [ 6 ] Mrs. Burstein decided she wished to drive as well and informed Allstate.

She claims Allstate advised her not to inform Exotic she was the second driver since she was already covered by Allstate's insurance policy; Allstate maintains it has simply said that it was not necessary to inform Exotic. [ 7 ] Since Exotic required all drivers be listed, Mrs. Burstein informed Exotic of her intention to drive. Exotic then charged $39.95 per day more for an additional driver, which it states is an administrative fee. [ 8 ] Mrs. Burstein had advised Allstate that both she and her husband would be renting a car but she did not inform Allstate of

Exotic's additional charge. [ 9 ] Exotic sent two bills to the Bursteins for a total of $22,808.82. The bill was adjusted to $20,700.11, after Mrs. Burstein's daughter was removed as a driver. However, the invoice includes the cost of Mrs. Burstein as an additional driver. [ 10 ] In October 2009, Allstate advised Mrs. Burstein it would not honour the extra cost Exotic charged for the second driver; the maximum amount it would accept was $175 per day. [ 11 ] Allstate sent the Bursteins two cheques for a total of $17,348.89.

This sum is $3,351.22 less than what the Bursteins paid Exotic. [ 12 ] Allstate's representatives declared that Allstate pays only the rental cost of a car. In its experience, a spouse is automatically covered. Contrary to Exotic’s claim that the charge for a second driver is a standard practice in the car rental business, Allstate contends it had never encountered a situation where an extra charge was imposed for an additional driver. If Mrs. Burstein had an accident with the rented car, Allstate would honour her claim. [ 13 ] Allstate submitted that Mrs.

Burstein asked to be added as a second driver as of July 20, 2009 but made no mention of additional fees. However, its position would be the same even had it been informed of the extra charge. [ 14 ] Allstate considers the extra fee unreasonable, particularly since a spouse is covered under the Burstein's insurance policy and therefore both Mrs. Burstein and her husband were covered. [ 15 ] Furthermore, Allstate points to the fact that the contract with Exotic does not indicate that Mrs.

Burstein would be the additional driver; in fact the rental contract shows the daughter as the added driver and once she was removed, there was no mention of any added driver. [ 16 ] Mrs. Burstein maintains there never was an agreement to limit the payable amount to $175 per day and Allstate's refusal to reimburse her is not in keeping with the provisions of her insurance policy. She adds that Exotic’s extra charge was not related to an insurance fee but was an administrative cost, which provided her with the legitimacy to drive. [ 17 ] Mrs.

Burstein contends that her policy covers, in full, whatever rental costs are incurred to rent a comparable substitute vehicle for the duration of the repair period. She alleges that Allstate failed to honour the terms of the couple’s insurance policy and is claiming the said sum of $3, 351.22, which Allstate refuses to pay. Analysis [ 18 ] The Burstein’s car suffered damage following an accident in 2009. The Burstein’s insurance policy with Allstate provides a comparable vehicle in such circumstances. [ 19 ] The Bursteins found a Mercedes at a rental of $175 per day.

Allstate was advised as to the rental car chosen by the Bursteins and accepted the amount payable to rent this vehicle, namely $175 per day. Mrs. Burstein then advised Allstate that she was adding another driver but failed to inform Allstate there would be an additional cost for the second driver. [ 20 ] The Bursteins stated they had no choice but to list all the drivers in the rental contract since this was required by Exotic rental cars. They argue that since they are both covered by their insurance policy, Allstate should cover the additional cost incurred. [ 21 ] The Court does not agree.

The insurance policy contains, amongst others, the following provisions with respect to Allstate providing a substitute vehicle in the case where the insured’s car is under repair: “(

c) a Temporary Substitute Automobile – an automobile not owned by the Insured, nor by anyone whose domicile is the same as the Insured's, and temporarily used as the substitute for the Described Automobile where such Described Automobile cannot be used because of its breakdown, repair, maintenance, loss, servicing, destruction or sale; (

d) any automobile other than the Described Automobile, while personally driven by the insured or by his or her spouse, provided that the Insured is an individual and …” [ 22 ] Allstate’s obligation is to pay for the cost of the rental car. Both Dr. and Mrs. Burstein come under the insurance policy if there is an accident, whether the accident involves their own car or a rental car. [ 23 ] Allstate agreed to the price of $175 per day for the Bursteins to rent an alternative comparable car. It had not agreed to pay additional costs, particularly when it was not aware of such extra costs.

Moreover, the contract with Exotic does not list Mrs. Burstein as an added driver. [ 24 ] The Court considers that Allstate, by paying for the cost of a comparable alternative car, respected its contractual obligations. [ 25 ] The Bursteins, who have the burden of proof, have not satisfied the Court by preponderant evidence that their claim is well founded and therefore, the Court cannot provide them with the recourse they are seeking. FOR THESE REASONS, THE COURT;

DISMISSES Plaintiffs’ motion to institute proceedings; THE WHOLE , with costs. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: September 4, 2012