The court held that the insured, who was bitten by a mosquito and contracted West Nile Virus, was not entitled to accident insurance under the group policy because his injuries were not the result of an “accident”, but rather of disease

Kolbuc v. Ace Ina Insurance, [2006] O.J. No. 47, Ontario Superior Court of Justice

The insured was bitten by a mosquito and contracted West Nile Virus, which left him paraplegic. The insured was insured through his union under a group accident policy. The issue was whether the insured’s injury was caused by an “accident”. The word “accident” was not defined in the policy. However, the policy did provide that the “accident” must arise “out of the hazards described in Schedule VI”. Schedule VI contained a clause that read as follows: “Loss resulting from unavoidable exposure to the elements and arising out of hazards described above shall be covered to the extent of the benefits afforded an insured person”.

Both parties agreed that the word “accident” was an ordinary word to be interpreted in the ordinary language of the people. Here, a generous interpretation of the word was necessary, given that the insurer did not define “accident” in its policy, and given that the insurer could have limited the scope of the policy by expanding the list of exclusions.

The court stated that the insured’s situation was factually similar to the situation in the Ontario Court of Appeal case of Wang v. Metropolitan Life Insurance Co. (2004), 72 O.R. (3d) 161 (C.A.). The court found that the insured, like the insured in Wang, suffered a rare and devastating consequence that came about not as a result of anything he did, but as a result of his body’s reaction to a virus. The court stated that the rarity of a consequence is not determinative of whether that consequence is “accidental”. While it was rare, it was not unnatural that the virus was transmitted to the insured through a mosquito.

Furthermore, the court stated that although the “exposure to the elements” clause did encompass being bitten by a mosquito, that clause did not broaden the meaning of the “accident”. It only broadened the type of loss that would be covered in the event of an “accident”. In the result, the insured’s claim was dismissed.

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