[2010] A.J. No. 1373

2010 ABQB 746

Alberta Court of Queen's Bench

K.G. Nielsen J.

November 26, 2010

This was an action in which the plaintiff sued for benefits under an accidental death and dismemberment insurance policy following the death of her husband, who had died while scuba diving in the lake near their summer cabin. The issue for the court was whether the death was caused by an accident.

At trial, the evidence of the pathologist who performed the autopsy on the deceased was that the deceased suffered an arrhythmia (an abnormal heart rhythm) while swimming, which led to a loss of consciousness. Following the loss of consciousness, the deceased made some attempts to take in breath but this was unsuccessful due to the fact that he was underwater. Drowning was not the primary cause of death. The expert evidence of a cardiologist was that the arrhythmia was caused by a genetic or inherited condition which made the deceased inherently vulnerable. This vulnerability was triggered either by immersion in the cold lake waters or by the exertion of swimming. The court accepted the evidence of both doctors with respect to the cause of death and also accepted the expert cardiologist's opinion that it is unlikely that the deceased would have suffered an arrhythmia and consequently death had he not been swimming in the lake on that day.

The court then had to decide whether death in this manner was “caused by an accident” so as to trigger coverage under the policy. The term accident was not defined in the policy. The plaintiff argued that the death was caused by an accident, namely, immersion or swimming in cold water which triggered the inherent arrhythmic condition. The insurer argued that the death was a result of insured’s inherent genetic arrhythmic condition.

The court found that the activity of swimming was the trigger or event which brought on the arrhythmia which led to death and concluded that the deceased's death arose from his inherent congenital heart condition. The court held that there was no mishap, untoward event, contortion, or trauma which led to death. Rather, the event - swimming - which caused the arrhythmia was a very natural and common event and could not be characterized as an accident when that term was given its ordinary meaning.

The court further noted that on a consideration of the expectations of both the insurer and the insured, a reasonable customer seeking an accident benefits policy would not expect that the circumstances surrounding the death would give rise to a claim under an accident benefits policy. To do so would convert the accident benefits policy to a general health, disability, or life insurance policy.

In the result, the court held that the plaintiff had failed to establish on a balance of probabilities that the death was caused by an unlooked for mishap or untoward event and had failed therefore to prove that the death resulted from an accident. The Plaintiff's claim for benefit payments under to the policy was therefore dismissed.