Priority Dispute Between Progressive Casualty Insurance and Coseco Insurance Company: Arbitration Award

BACKGROUND

This Arbitration arises out of the obligations incumbent upon insurers under Regulation 283/95 s. 7, to resolve priority disputes under s. 268 of the Insurance Act by way of private Arbitration under the Arbitration Act 1991.

Sec. 268 governs to which insurer a non occupant of a motor vehicle involved in a motor vehicle accident can look for the payment of no fault benefits. Sec. 268(2)2. provides that:

2. In respect of non-occupants,
   
   i) the non-occupant has recourse against the insurer of an automobile in respect of which the non-occupant is an insured,
   
   ii) if recovery is unavailable under subparagraph i, the non-occupant has recourse against the insurer of the automobile that struck the non-occupant, (emphasis added)
   
   iii) if recovery is unavailable under subparagraph i or ii, the non-occupant has recourse against the insurer of the automobile involved in the incident from which the entitlement to no-fault benefits arose,
   
   iv) if recovery is unavailable under subparagraph i, ii or iii, the non-occupant has recourse against the Motor Vehicle Accident Claims Fund.

Choice of Insurer

4. If, under...subparagraph i or iii of paragraph 2, a person has recourse against more than one insurer for the payment of no-fault benefits, the person, in his or her absolute discretion, may decide the insurer from which he or she will claim the benefits

The accident occurred in the following manner: Mr. Hedayat (the "insured") was travelling north on Dufferin St. on his bike towards the intersection with Lindsey Ave. The insured waited for the van insured by Progressive (the "Progressive van") (which was making a left turn onto Dufferin from Lindsey Ave) to clear the intersection, as it was blocking his route north on Dufferin. As the Progressive van proceeded with its left turn, the insured passed behind the Progressive van and hit the van insured by Coseco (the "Coseco van"), which was making a left turn onto Lindsey Ave., in a perpendicular or "T-Bone" collision. The insured did not have coverage under his own automobile policy.

Progressive has paid no-fault benefits to the insured, and seeks in this Arbitration to be reimbursed by Coseco for that payment.

Progressive's contention is that the facts demonstrate that not only did the insured strike the Coseco van, but at the same time, the Coseco van struck the insured, thereby bringing the situation within the ambit of s. 268 (2)2. (ii), which would oblige the insurer of the vehicle which struck the non-occupant insured to pay the no-fault benefits. This contention, as will be dealt with in detail later, hinges on an interpretation of s.268 (2)2. (ii) in which the operative word "struck" essentially means to "collide with," and thus the focus is not on who caused the striking but on the fact of a collision. In other words, if the Coseco van collided with the insured then under s.268 (2)2. (ii) Coseco should pay. At no time did the insured strike the Progressive van or come into contact with this van.

Coseco's contention is that the mere fact of a collision is not determinative. Accordingly, if it cannot be said that the Coseco van "struck" the insured (using the common meaning of that word), then under s. 268 (2)2. recourse is had to subparagraph (iii), in which recovery being unavailable under subparagraph (ii), the insured has recourse to the insurer of "the automobile involved in the incident from which the entitlement to no-fault benefits arose.

" It was never contested at the Arbitration that both insurers' vans were involved in the incident for the purposes of s. 268 (2)2. (iii). By virtue of s. 268 (4), where there is more than one vehicle (and hence more than one insurer) "involved in the incident from which the entitlement to no-fault benefits arose" the insured must elect from which insurer to claim, which election is exercised in the absolute discretion of the insured. In this case then, the initial election of the insured to pursue Progressive stands and Progressive is not entitled to any reimbursement.

Coseco also contends that Progressive's claim is out of time vis a vis the 90 day limitation period in 3. of Reg 283/95 which states that:

1. No insurer may dispute its obligation to pay benefits under s. 268 of the Act unless it gives written notice within 90 days of receipt of a completed application for benefits to every insurer who it claims is required to pay under that section.
   
   
2. An insurer may give notice after the 90 day period if,
   
   a) 90 days was not a sufficient period of time to make a determination that another insurer or insurers is liable under s. 268 of the Act; and
   
   b) the insurer made the reasonable investigations necessary to determine if another insurer was liable within the 90 day period.
   
   
3. The issue of whether an insurer who has not given notice within the 90 days has complied with sec. 2 shall be resolved in an arbitration under s. 7.

Coseco claims that Progressive received a completed application from the insured on November 14, 1996, but did not give Coseco written notice under Reg 283 3. until February 19, 1997, in excess of the 90 days which Progressive had to give notice to Coseco of the priority dispute. Therefore Coseco asks that I rule that Progressive is not entitled to dispute its obligation to pay the benefits it has already paid.

Coseco also suggests that there may have been bad faith or an intentional ducking by Progressive of its statutory responsibilities, which under the "clean hands" doctrine ought to operate so as to rule out Progressive obtaining relief in the form of reimbursement from Coseco. Progressive, under this argument, should not be allowed to profit from its own improper behaviour.

THE LIMITATION QUESTION AND "CLEAN HANDS" ARGUMENT

It is necessary to first determine these questions because if Coseco is correct, Progressive is not entitled to dispute its payment of no-fault benefits and there will be no need to decide the larger question under s. 268.

Coseco submits that Progressive initially received the insured's completed application on November 14, 1996, as evidenced by Progressive's perforated date stamp. This application contained all the information Progressive needed to process the claim and commence paying benefits as it was required to do under 2. of Regulation 283 which states that "the first insurer that receives a completed application for benefits is responsible for paying benefits...pending the resolution of any dispute as to which insurer is required to pay benefits under s. 268 of the Act." The OIC Bulletin No. A-5/95 offers guidance on this provision and reiterates that "insurers that first receive an application for accident benefits will now be required to pay benefits pending the resolution of these disputes" ie/ where it is unclear which company is liable to pay benefits.

Instead of commencing payment, Coseco contends that Progressive intentionally deflected the insured's application by sending it to his solicitors, Longley/Vickar on November 28, 1996, with the instruction/understanding flowing from an earlier conversation with Nina Caprio, a legal secretary, that the application be sent to Coseco for payment. In the letter to Longley/Vickar Progressive states that a "non-occupant claimant first has recourse against the insurer of the automobile that struck him."

It then appears that after receiving the application from Progressive, Longley/Vickar waited until December 17, 1996 before applying for accident benefits and sending the application to Coseco. On December 19, 1996, Coseco refused coverage, stating in a letter to Longley/Vickar that "this package has previously been received by Progressive Insurance on November 14, 1996. Progressive must respond to this package accordingly."

It then took until February 13, 1997 for Longley/Vickar to return the insured's application to Progressive, after which on February 19, 1997 Progressive gave Coseco written notice of the priority dispute. Progressive then began to pay accident benefits to the insured. Accordingly, it took between November 14, 1996 and February 19, 1997, approximately 3 months, for the insured to receive the payments to which he was entitled.

Progressive does not dispute the general chronology but denies any malfeasance or deliberate attempt to thwart the system or delay payment to the insured. It indicated that the initial application of the insured was not complete, because it lacked a Health Practitioner's Certificate (a "medical report"), which according to the testimony of John Beddard, the response team leader with Progressive at the time, was required before Progressive could process the accident benefits. Progressive did not receive the medical report until the December 17th 1996 letter from Longley/Vickar enclosing it. Beddard further indicated that he did not believe that Progressive was the correct insurer as the Progressive van never came into contact with the insured.

There was a conversation between Beddard and Nina Caprio in which, according to Beddard, Caprio requested Beddard to send the application to Longley/Vickar and she would send it to Coseco. Beddard says that he told her that if Coseco rejected the application, to send it back to Progressive which would then commence paying benefits since Progressive first received the application and that Progressive would also then initiate the priority dispute resolution process.

Caprio's recollection of this conversation is that Beddard essentially stated that he was giving the application back to Longley/Vickar and that it should be sent to Coseco. He never mentioned any "withdrawal" of the application. She further denies that any "agreements" were reached or that Beddard indicated that Progressive would pay if Coseco rejected the application. She did state that it was her experience that an insurer could not process an application for accident benefits without the medical report, which corroborates Beddard's testimony on this point.

Clean Hands Argument

I do not find that Progressive schemed to delay payment to the insured or that Progressive did anything unlawful or in bad faith. While the correct procedure would certainly have been for Beddard to commence paying the insured's benefits upon initial receipt of the application, there is some doubt as to whether this in fact could have occurred around November 14th because there was no medical report with the application. Without deciding whether the lack of such a report constitutes an "incomplete application" (as the determination of this question may vary with the circumstances and nature of each application on a case by case basis), it is clear that there would have been some delay in obtaining the medical report which I accept would have been needed in this case.

Further, there was the major intervening delay in this case not caused by Progressive. The main delays in the insured receiving payment appear to be attributable to his own solicitors--Longley/Vickar. They delayed between November 28, 1996 (when they received the application) and December 17, 1996 in sending the application to Coseco, and again between December 19, 1996 (when the law firm received the application back from Coseco with Coseco's rejection of the claim), and February 13, 1997 when Longley/Vickar finally sent the rejection and application with a completed medical report to Progressive. Nina Caprio had no explanation for these time lags and they essentially delayed things by over 2 months. The insurers, in contrast, always acted speedily--Coseco rejected the claim and sent it back to Longley/Vickar within 2 days and Progressive commenced paying benefits and wrote Coseco within 6 days of receiving the rejected application from Longley/Vickar.

At no time did Longley/Vickar insist that Progressive commence paying benefits, which they should have done in the first conversation with Beddard. Perhaps part of the problem lies with effective carriage of a matter being handled by a secretary, no matter how competent, in the law firm.

The way in which this application was handled by Progressive was not ideal. However I accept Beddard's explanation that he really thought Coseco should pay because the insured came into contact with the Coseco van. Whether or not that is the correct interpretation of s. 268 is the subject of this Arbitration, a matter about which even counsel were obviously not able to agree. Accordingly Beddard can not be taken to have known which insurer would ultimately be liable.

Where Beddard erred under regulation 283 was in not immediately commencing payment to the insured while sending the application on to Coseco, or better yet, initiating the disputation process. This appears however to have been an honest mistake. There is no evidence of improper motive or a thought out attempt to delay payment to the insured. Indeed, had Longley/ Vickar acted with dispatch, the evidence shows that with the speed with which the insurers responded, the insured likely would have received payment within a few weeks.

I accept Beddard's evidence that between November 28, 1996 and February 13, 1997 he/Progressive thought that Coseco had accepted the claim and that he contemplated a quick response in November 1996 should Coseco reject the claim, after notification of which he intended (and in fact did) quickly commence paying benefits to the insured.
Accordingly the facts do not support an invocation of the clean hands doctrine.

Expiry of the Limitation Period

There are a number of aspects to this problem which require analysis.

Firstly, as mentioned above, but for the unexplained delay of Longley/Vickar in sending the application to Coseco (between approx. November 28-December 17) and giving it back to Progressive after receipt of the rejected application from Coseco (between approx. December 19-February 13), the 90 days would not have expired. During this span of time, only 2 days are attributable to Coseco's turnaround time (December 17-19). Only 20 days are attributable to Progressive's turnaround time (between November 14-28 and February 13-19). The fact that more than 90 days expired between November 14, 1996 and February 19, 1997 was not primarily due to Progressive and it should not be penalized for the dilatory action of another party.

Secondly, I find that Coseco had actual notice and knew or ought to have known about the dispute long before February 19, 1997. It was accepted evidence that there had been a discussion between Beddard and Stephanie Cain of Coseco on November 27, 1996. This call was to determine if the coverage with Coseco was valid. At that point, at a minimum, Coseco knew of Progressive's involvement and of its own potential involvement.

Regulation 283 requires written notice, and in effect this was provided to Coseco on December 17 by Longley/Vickar sending the application to Coseco. Coseco clearly appreciated from where the application had originally come because 2 days later it responded by sending the application back to Longley/Vickar and commenting:

"We are returning same to you as this package has previously been received by Progressive Insurance on November 14, 1996. Progressive must respond to this package accordingly."

Therefore by December 17, 1996 Coseco was aware that Progressive had, through Longley/Vickar, attempted to have Coseco handle the claim and that Coseco might be liable for this claim. Upon Coseco's decision not to accept liability, Coseco knew or ought to have known that there was going to be a priority dispute with Progressive.

Accordingly, within 90 days of Progressive receiving the application on November 14, Coseco did receive written notice, through Longley/Vickar, of Progressive's claim that Coseco was required to pay under s. 268 and that there would be a priority dispute with Progressive.

Additionally, Progressive was unaware that Coseco had rejected the claim until February 13, 1997. Upon learning of this, Progressive acted expeditiously and commenced the disputation process on February 19. Given these facts and the fact of the bulk of the delay being caused by Longley/Vickar, I find that in this case 90 days (from November 14) was not a sufficient period of time to determine if another insurer was liable.

Through no fault of its own Progressive did not learn of Coseco's rejection until over 90 days had elapsed. Further, Progressive, albeit clumsily, also made the investigations necessary within 90 days of November 14 to determine if another insurer was liable by ascertaining through Longley/Vickar whether Coseco would pay by having the application submitted to them.

Accordingly, the exception to the strict 90 day period under 3.(2)(a) and (b) is made out.

Coseco has not raised any evidence of prejudice, or how this delay offends the principles of certainty, avoidance of stale evidence or enforcing diligence referred to by the Supreme Court of Canada in M.(K) v M.(H), [1992] 3 S.C.R. 6.

In summation, there has not been a violation of the 90 day period for disputing an obligation to pay benefits under s. 268 and Progressive is entitled to proceed with this dispute.

MEANING OF THE WORD "STRUCK" IN S. 268

In interpreting s.268, I am cognizant of the fact that determining fault is not relevant. To ascertain fault or bring into the interpretation any blame for the accident would be contrary to the no-fault legislation.

Referring to the statement given by the insured and the report prepared by Michael Rochon, I find as a fact that the insured's bike hit the Coseco van. At least 51% of the force involved in this accident emanated from the bike.

Because of the near perpendicular nature of this accident, a difficult problem of interpretation of s. 268(2)2.(ii) has arisen.

Progressive asks that "struck" be taken to mean "collided with" or "came into contact with." It cites Webster's internet dictionary definition which includes, among other definitions, "to come into contact forcefully" and Webster's New Riverside University dictionary which includes "to collide with" and "to move into violent contact." In this sense, a hammer and nail can be characterized as not only the hammer striking the nail, but the nail striking the hammer.

The logic of this assertion is compelling as it would foreclose debate or analysis of any given accident involving a non-occupant: if the non-occupant has a collision or coming into contact with another insured vehicle, then under s.268(2)2.(ii) the insurer of that vehicle would be liable to pay benefits. There would be no need to ever look into the mechanics of an accident. Sec. 268(2)2.(iii) and the insured's election would only come into play if no collision of any kind occurred, such as a pedestrian suffering nervous shock from witnessing an accident involving vehicles which never touched the pedestrian.

Coseco argues that "struck" must import an emanation of force, in the way we colloquially say that the hammer strikes the nail, or the bat strikes the ball. An analogy was drawn to the Athletic Control Act R.S.O. 1990 c.A.34 s.44 where it is stated that the referee may consult the judges as to whether "a boxer has struck the other boxer below the belt." Use of the word "struck" is taken to mean that the boxer strikes the groin and not the groin strikes the boxer! The Canadian dictionary definition of "strike" includes "deal a blow to." Accordingly, while the definition of "strike" does include a collision, the best definition from among the several available in the context of s. 268 is one which requires some transmission of force.

I am guided by previous cases interpreting the word "struck" that support this view. In Re Strum and Cooperators Insurance Association (1973), 2 O.R. (2nd) 70, a motor vehicle hit a post which in turn hit a pedestrian. This case considered the old s.26 of the Insurance Act in which it was provided that where an injured person is:

"(b) ...a pedestrian and is struck by a motor vehicle, the insurer of the owner of the motor vehicle shall...be liable for the payment of benefits." (emphasis added)

Not with standing that there was no direct contact or collision between the vehicle and the pedestrian, Osler J. found that:

"Here the force of the impact was transmitted directly to the person of the claimant by an object which was and which remained for the critical period in contact with the automobile. The force was thereby directly transmitted from the automobile to the deceased. This, in my view, amounted to a striking within the meaning of the policy."

In Re MacGillivray, [1975] I.L.R. 1254 the plaintiff was standing between two stationary vehicles, one of which was rammed by a third vehicle. Liability was imposed on the insurer of the third vehicle, citing the above passage of Osler J. from Re Strum.

The Ontario Court of Appeal in Ezard v Warwick et al. (1978), 21 O.R. (2nd) 658 held that where a moving vehicle causes a parked vehicle to strike a person standing in the roadway, the person has been "struck" by the moving vehicle. At issue was s.234a (1) of the Insurance Act, essentially identical to s.26 quoted above. The Court of Appeal made it quite clear that in coming to this determination, they were "not engaging in the process of attributing fault, but merely interpreting the words of the statute." The Court specifically upheld Re Strum and Re MacGillivray.

The principle uniting these three decisions is that in interpreting the word "struck" one looks to from where the transmission of force originated. This is not the same thing as assigning fault. Accordingly, the question to ask is who transmitted the force or who was the principal force which created the damage in the accident? This question requires a case by case analysis.

The more recent case of Traham v Royal Insurance (1981), 32 O.R. (2nd) 143 is consistent with this principle and the employment of a case by case approach. It decided in a situation where one moving automobile struck a second moving vehicle, causing the latter to strike a pedestrian, that the pedestrian was "struck by" the second moving motor vehicle which exerted its own independent force. Grange J. distinguished the case from that where the second motor vehicle is stationary and exercises no independent force, in which event the first motor vehicle would have been the transmitter of the force of the accident and the insurer for that vehicle would have been liable. Grange J. stated that:

"While the principle of "transmission of force" can just as well apply to a moving vehicle as to a stationary vehicle, I do not think that it should be applied to the case at bar. There was here an independent force in the private vehicle although that force was affected by the collision with the ambulance. True, it would never have hit the plaintiff but it was a moving force nonetheless.

In so holding I do not think that I am deviating from the principle set out by the Court of Appeal. That Court specifically said that it was not "engaging in the process of finding fault...". In the case at bar I do not see how the ambulance could be found to be the striking vehicle unless it be determined that the private vehicle was purely a passive factor in the accident."

Grange J. contemplates that utilization of the transmission of force principle would normally render the first vehicle liable, but in this case, the second moving vehicle had its own independent force sufficient for it to be the vehicle which "struck" the pedestrian and therefore liable for the accident. Nonetheless Grange J. indicates that the transmission of force principle can still apply to a moving vehicle, and he in effect does apply it by finding that there was sufficient independent force in the moving private vehicle to render it the principal transmitter of the force which led to the damage in this accident. It is interesting that at some level Grange J. sensed his application of the transmission of force principle because he did not think that he was deviating from the principle set out by the Court of Appeal in Ezard v Warwick, which clearly enunciated the principle of "transmission of force."

I feel that I am bound by a case by case approach and the transmission of force principle, particularly when the earlier sections at issue in its evolution so closely resemble section 268 (and the issue of insurer liability) at issue in this Arbitration.

How then to apply the transmission of force principle to the facts of this accident?

In this perpendicular or "T-Bone" accident, the bike hit the van, and the bike was therefore the transmitter to the Coseco van of the principal force involved in the accident. More than 51% of the force involved in this accident emanated from the bike to the Coseco van.

Expressed in terms of physics, the party who does the striking can be said to be the one who's small changes to their magnitude of velocity has the largest effect on the magnitude of the impact velocity.

In this case, a small change in the magnitude of velocity of the bike (whether by braking or accelerating) would have had the greatest effect on the magnitude of the impact with the Coseco van. Conversely, a small change in the magnitude of velocity of the Coseco van (whether by braking or accelerating) because of the near perpendicular nature of the collision, would have had the smallest effect on the magnitude of the accident's impact. Such a change in velocity on the part of the Coseco van would not have effected the force of the accident as much as such a change on the part of the bike.

In light of the above, I find that the Coseco van did not strike the bike, but rather the bike "struck" the Coseco van within the meaning of s.268. I reject the assertion that "struck" within s.268 means "any collision" or "coming into contact with." Had the Legislature intended that to be the case, it could easily have used the words "collide with" or "came into contact with" in s. 268 or any of the predecessor provisions using the word "struck" examined above.

Additionally, the Court of Appeal's decision in Ezard v Warwick and the cases upon which it relied must be taken to have implicitly rejected the "any collision" interpretation of the word "struck.." In all these cases where a moving vehicle hit a stationary vehicle, it was the stationary vehicle which actually collided with the plaintiff/pedestrian. However, all these cases have held that the moving vehicle, (not the stationary vehicle) was liable because the moving vehicle had "struck" the pedestrian within the meaning of the section. If the "collided with" interpretation is correct, these cases have been wrongly decided. If the "collided with" interpretation is right, the stationary vehicles should have been held to have "struck" the pedestrian because they were the vehicles which collided with or came into contact with the pedestrian. That not being the case, we are left with interpreting the word "struck" consistent with the transmission of the principal force leading to damage in a given accident.

Future Operation of s. 268

How will this transmission of principal force principle operate in the future under s.268?

For example, a vehicle hits a garbage can, a pole, a stationary vehicle etc, which object then hits a pedestrian (a non-occupant). The transmission of principal force principle will denote that the moving vehicle will have "struck" the non-occupant and the insurer of that vehicle will be liable.

What about other cases in which a moving motor vehicle cannot be said to have "struck" a non-occupant, for example a moving vehicle hits another parked vehicle without ever touching the non-occupant, who due to the horror of the accident suffers nervous shock. In this case resort would be had to s.268(2)2.(iii) and (4) and the insured can elect whether to pursue the insurer of the moving or of the parked vehicle, because both will be an "automobile involved in the incident from which the entitlement to no-fault benefits arose." If two vehicles hit each other, and a bystander suffers nervous shock or is hit by a piece of flying debris the origin of which is never ascertained, s.268(2)2.(iii) and (4) will again operate so as to give the insured an election as to which vehicle's insurer to pursue. This is because in these examples no vehicle involved in the accident transmitted force to the non-occupant. Therefore recovery under s.268(2)2.(ii) is unavailable and s.268(2)2.(iii) comes into play.

In the scenario of a non occupant cyclist involved in a head on collision with a motor vehicle, it may be impossible to determine on the facts who "struck" who. Accordingly, resort would be had to s. 268(2)2.(iii), in which case liability would still be imposed on the insurer of the vehicle because it was "involved in the incident from which the entitlement to no-fault benefits arose."

In another example, suppose an accident similar to this one, but in which there is no other van and no true perpendicular collision because the van is turning or driving at a significant angle as it is colliding with the bike, making it unclear which party, the van or the non-occupant cyclist, transmitted the principal force of the accident. As it cannot be said that that vehicle "struck" the non-occupant utilizing the transmission of force principle, resort will again be had to s.268(2)2.(iii) and the insurer of the vehicle involved will still be liable, as it certainly would be an "automobile involved in the incident from which the entitlement to no-fault benefits arose." This would also be the case if a pedestrian, while not looking, ran into a parked car and injured himself.

Meaning of "the Automobile Involved in the Incident From Which the Entitlement to No-Fault Benefits Arose"

Though not essential to the disposition of this arbitration, Counsel have asked that I elaborate on the meaning of s.268(2)2.(iii) and the phrase that the non-occupant has recourse to the insurer of the "automobile involved in the incident from which the entitlement to no-fault benefits arose." In my view, this simply means that there is a reasonable nexus between the vehicle and the cause of the accident. A "striking" by the vehicle is not required. It is sufficient if the vehicle is involved in some reasonably proximate way to the manner in which the accident occurred. Accordingly, a non-occupant could not elect to pursue the insurer of a vehicle a block away, or somewhere else on the roads in the city. The vehicle "from which the entitlement to no-fault benefits arose" must be reasonably involved in the scenario on the road which created the accident.

Disposition

In this case we have two vehicles insured by different insurers each of which can be said to have been "involved in the incident from which the entitlement to no-fault benefits arose." Indeed, no issue was ever made by Progressive that the Progressive van was "involved" under this definition and that Progressive would be liable under s.268(2)2.(iii) because the insured elected to pursue Progressive.

There is no evidence before me of any other election by the insured--he has never indicated a positive preference for recourse against Coseco. The application only found its way to Coseco due to the conversation between Beddard and Nina Caprio (referred to above), and in any event was given back to Progressive.

The insured's application was first given by his solicitors to Progressive. Accordingly, s.268(2)2.(iii) and (4) operate such that the insured's election to pursue Progressive stands and Progressive is liable to pay benefits to the insured. There will be no reimbursement by Coseco.

Progressive is of course at liberty to exercise its subrogation rights and seek contribution from Coseco to the amounts paid to the insured.

COSTS

In light of the time spent during the Arbitration on the issues dealt with above (a more or less even split between the "clean hands" and limitation issues and the main issue under s.268), and the fact that Progressive won on the preliminary issues but not on the main issue, each party shall bear its own costs of the Arbitration.

I am grateful to the energetic and well argued submissions of counsel on all of the issues in the Arbitration.

Michael Silver

October 26, 1998
Toronto