The recent decision in Conrad v. State Farm confirms once again that a Plaintiff cannot successfully argue that they did not understand that an Explanation of Benefits (OCF-9) terminating or denying benefits starts a limitation period where a Plaintiff has retained Counsel.
In Conrad, the Plaintiff was injured in a motor vehicle accident on September 2, 2005. She was not eligible for income replacement benefits or caregiver benefits. After a Disability Certificate was submitted which indicated that the Plaintiff did not suffer a complete inability to carry on a normal life, an OCF-9 was sent dated October 14, 2005. The OCF-9 stated that based on the Disability Certificate, Ms. Conrad was not considered eligible to receive a non-earner benefit. State Farm took the position that this OCF-9 started the running of the limitation period.
Based on correspondence in the file, it was determined that Plaintiff Counsel was retained by May 3, 2006. Ms. Conrad did not apply for Mediation and a Statement of Claim was issued on July 10, 2012.
In finding that the limitation period had expired, the Court relied on the previous decisions of Katanic v. State Farm and Seitzema v. Economical. In both of these cases, the Court noted that Counsel had been retained by the Claimant within the limitation period and no explanation had been provided as to why no claim was issued before the limitation period expired. In the latter decision, the Court held that once the Plaintiff retained Counsel to advise her of her rights, the Plaintiff can no longer plead that she did not understand the OCF-9.
In Conrad, the Court noted that since May 2006 the Plaintiff was represented by counsel who could have issued a claim within the applicable time period. Justice Reilly held that limitation periods were important and must be observed. Given the years that had elapsed, the claim for non-earner benefits was barred and the motion for summary judgment was granted.
When Defence Counsel are bringing summary judgment motions on the basis of expired limitation periods, it is imperative that correspondence establishing when Plaintiff Counsel were retained be included. The recent trend shows that Courts are putting significant weight on the fact that Counsel is retained throughout the duration of the two year period in finding that limitation periods have expired.
To date, this decision has not been appealed.