No one intends to contract COVID-19. In fact, most rational people intend to do just the opposite. What if, despite your best intentions/precautions, you contract COVID-19 by accident? What if this unfortunate event results in your death? Is there a claim under your accidental death policy? (Note different considerations apply to coverage under life insurance policies).
Believe it or not, the Supreme Court of Canada (SCC) touched on this coverage issue in their 2009 decision in Gibbens v. Co-operators Life Insurance Company[1] (Gibbens). Gibbens involved consideration of coverage under a critical illness policy for the unfortunate Mr. Gibbens who contracted genital herpes (a virus) after engaging in unprotected sex with three women. The herpes caused an inflammation of his spinal cord, which resulted in total lower body paralysis. Mr. Gibbens had a group insurance policy which provided coverage for bodily injuries occasioned solely through external, violent and accidental means (without negligence on his part). The policy did not contain any definition of accident or accidental means.
At the end of the day, Mr. Gibbens was not afforded coverage.
The SCC’s discussion of “accidental means” in the context of a virus is instructive in the COVID-19 pandemic.
At trial, the judge found that diseases which do not result from a natural cause must be accidental and found in favour of Mr. Gibbens. The British Columbia Court of Appeal agreed, finding the paralysis did not occur naturally, rather it arose from an external factor or unlooked for mishap, being the introduction of the herpes virus into his body by a sexual partner. The Court of Appeal found Mr. Gibbens’ bodily injury was unintended or unexpected and thus the loss was caused by accidental means as required by the policy.
The SCC embarked in an in-depth review of “what is an accident” for the purposes of coverage under the policy. The SCC noted the Court of Appeal decision would, in effect, make the insurer liable for all sexually transmitted diseases where they were contracted neither deliberately nor negligently. Prophetically, the SCC noted the appeal decision would have considerable impact on liability for infectious diseases spread “in the usual course of events” by viruses and bacteria passed from person to person, whether sneezing in a bus, an unprotected cough in a crowded elevator, or a simple handshake. In light of this, the SCC found the policy excluded bodily injury from processes which occur naturally within the body in the ordinary course of events and from diseases that are transmitted in an ordinary way without any associated mishap or trauma.
The SCC acknowledged that the distinction between “accidents” and “diseases contracted in the ordinary course of events” is often not an easy one to make in practice. The acquisition of a disease can frequently be considered “an unlooked for mishap”. The SCC found it important to remember that diseases transferred from person to person through natural processes such as coughing or sneezing in someone’s presence are “in the ordinary course of events”. While acknowledging viruses thus transmitted may, in some situations, prove to have “calamitous and unexpected consequences”, to classify such transmissions as accidents transforms the policy into a comprehensive health policy, rather than an accident policy.
Mr. Gibbens’ argument was not without precedent. In Kolbuc v. ACE INA Insurance[2](Kolbuc), a plasterer bitten by a mosquito carrying West Nile was rendered a paraplegic. He recovered compensation under an accident policy. Justice Binnie, speaking for the SCC in Gibbens, refrained from comment on the merits of Kolbuc but noted the Court of Appeal in Gibbens acknowledged the world is populated with pathogens which constantly make their way into our bodies, which we in turn spread to others, sometime with little effect. Justice Binnie noted the bubonic plague was transmitted by fleas, malaria is transmitted by mosquitoes. In ordinary speech, we would not say the bubonic plague was the result of a pandemic of accidents or that the inhabitants of warm climates are particularly “accident-prone” to contracting malaria.
With remarkable foresight, Justice Binnie noted:
“It cannot be correct that passengers sitting in an airliner who catch the SARS virus through the externality of the plane’s air circulation system, or riders on a bus who catch “swine flu” from an infected fellow passenger, or people who contract any number of infectious diseases because of the failure to wash hands in disinfectant, or to smack a circulating mosquito, have valid claims under an accident policy.”
Justice Binnie found that such a conclusion would stretch the boundaries of an accident policy beyond a snapping point and convert it into a comprehensive policy for infectious diseases, contrary to the intent of the parties and their reasonable expectations. In Mr. Gibbens’ case, the “accident” was simply the inception of the disease in the ordinary course of events.
On this basis, and with this precedent, it is highly unlikely that a fatal case of COVID-19, no matter how unintentionally acquired, would fall within the parameters of the accidental death coverage under a policy.
For those who accidentally contract COVID-19 in the course of their employment and who are covered under a workplace insurance regime, coverage for benefits under such a regime is not foreclosed. According to Justice Binnie:
“Such schemes are, as they ought to be, generously interpreted in favour of injured workers.”
Decisions about the meaning of “accident” under workplace legislative schemes often turn on the particular statutory text, purpose and legislative history. The SCC referenced the decision in Toronto Professional Firefighters Association v. Toronto (City)[3], in favour of a firefighter who died of renal failure caused by his contact with toxic substances over his 20-year firefighting career. The Divisional Court overturned the arbitrator’s decision, establishing that the firefighter’s renal cancer was caused by exposures to toxic substances when the dangers were unknown and the safety equipment was unsafe. The SCC noted this was a case where “an unlooked for mishap or occurrence” caused a disease.
According to the SCC, interpretation of coverage under “accident policies” requires analysis guided by the following principles:
- Words like “accident” should be given their ordinary meaning;
- The term “accident” should be given a generous interpretation, unless a policy clearly restricts it;
- If the contract wording is ambiguous, contra proferentem (against the drafter – in this case, the insurer) should be applied;
- Where a policy is ambiguous, effect should be given to the reasonable expectations of the parties;
- Continuity of interpretation.
The analysis provided in Gibbens was remarkably prescient to the COVID-19 pandemic and coverage issues which may arise.
All of this to say, although unintended, a death from COVID-19 may not fall under the coverage provisions for “accidental” death.
[1] Co-operators Life Insurance Co. v. Gibbens, 2009 SCC 59.
[2] Kolbuc v. ACE INA Insurance, 2007 ONCA 364.
[3] Toronto Professional Firefighters Association v. Toronto (City), (2007), 223 O.A.C. 146 (Div. Ct.).
Miller Thomson is closely monitoring the COVID-19 situation to ensure that we provide our clients with appropriate support in this rapidly changing environment. For articles, information updates and firm developments, please visit our COVID-19 Resources page.
