The case of Randhawa and State Farm shows how a good investigation can pay off. In this case, the Insurer obtained the 911 call to show how its insured was possibly not involved in a motor vehicle accident.
On September 18, 2011, Mr. Randhawa suffered a spine injury that left him a paraplegic. The question was if the injuries were the direct result of the use or operation of an automobile.
Mr. Randhawa claimed that Harinder (his brother) drove him back home in his Acura, as a precaution. Mr. Randhawa sat in the passenger’s seat. Upon arriving at Mr. Randhawa’s house, Harinder parked Mr. Randhawa’s Acura. As Mr. Randhawa was about to exit the car from the passenger’s side, the door swung back at him because of the wind, causing him to lose control and fall backwards hitting his head on the curb. Harinder testified that he knew it was the wind that caused the door to swing back at Mr. Randhawa because, he felt the wind when Mr. Randhawa opened the passenger door to exit the car. Harinder and his son Harnek (who followed in the car behind) testified that they went to Mr. Randhawa’s house to get help. Randhawa’s daughter, Sumeet, called 911. Her evidence was that she had difficulty understanding her father at the time of the call.
The Ambulance Call Report dated September 19, 2011 indicated that Mr. Randhawa was dropped off at home at approximately 9:30pm on September 18, 2011. It further states that Mr. Randhawa felt dizzy prior to falling into a ditch at the front of his house and that he was found by his wife approximately an hour and a half later. The ambulance call report indicates that the 911 call was received at 1:31am on September 19, 2011.
The 911 call was the most compelling of all the evidence adduced in this case. Contrary to Sumeet’s testimony that she was confused at the time of making the call, the atmosphere sounded calm. In addition, there was no communication or language barrier between Sumeet and Rajinder and there did not seem to be any confusion. Sumeet appeared to have a relatively good medical history and account of how the fall occurred which she relayed to the 911 operator when she made the call. At one point where she needed clarification with regard to Mr. Randhawa’s weight, age and a description of the hill around the area where she reported that he fell, Sumeet asked Mr.Randhawa in Punjabi and translated Mr.Randhawa’s response back to the 911 operator. In all of these, there was no mention of the fact that Mr. Randhawa fell while exiting his Acura.
The arbitrator ruled that the automobile was not involved in this incident. I note that this is now under appeal, where Director’s Delegate Evans has said:
Subsection 283(1) of the Insurance Act limits appeals from the order of an arbitrator to questions of law. In Young and Liberty Mutual Insurance Company, (FSCO P03-00043, June 20, 2005), application for judicial review dismissed, 2006 CanLII 7286 (ON S.C.D.C.), Delegate Evans cited Delegate McMahon in Lombardi and State Farm Mutual Automobile Insurance Company, (FSCO P01-00022, February 26, 2003):
… errors of law include findings of fact made in the complete absence of supporting evidence, made on the basis of conjecture, or made on the basis of a misapprehension of the evidence caused by a misdirection on a legal principle. The vital distinction is between a conclusion that there was “no evidence” to support a finding and a mere “insufficiency of evidence.”
The Appellant does not argue that the Arbitrator’s decision was made in the complete absence of supporting evidence. Rather, it appears at this juncture of this appeal that the Appellant’s argument goes to the sufficiency of the evidence.
Yes, 911 calls are recorded, and can be obtained. Quite often the 911 operator obtains a great deal of information that could be useful in a fraud investigation. As a side note, the calls themselves would be admissible at FSCO or the LAT (as you can see above) but you may have a more difficult time in Superior Court, where they may only be inconsistent statements, but otherwise hearsay.
If you have any questions about this blog or a similar file, please contact our Special Investigations practice group.
