West Nile virus not an ‘accident’

Construction worker who was paralyzed after being bitten by mosquito while at work denied $130,000 insurance claim by Ontario court

Is a mosquito bite an accident? That’s the question an Ontario Superior Court of Justice judge was facing in a recent case involving a worker who contracted the West Nile virus after being bitten by a mosquito.

Ryszard Kolbuc was left paralyzed from the waist down from the virus after being bitten by a mosquito sometime in September 2002 while applying stucco to the outside of houses and buildings. When he was bit, Kolbuc was a healthy 52-year-old. His evidence, which was uncontradicted, was that the material he used in the course of his employment had a smell that attracted mosquitoes.

At the time he was bitten, Kolbuc was insured through his union with Ace Ina Insurance under a group accident policy. At issue in this case was whether his injury was caused by an “accident” as defined in the policy.

Prior to the summer of 2002, there had never been a case of West Nile in Ontario. On Sept. 16 or 17, Kolbuc started experiencing symptoms of the virus. He did not recall a specific instance of being bitten by a mosquito but, given the nature of his employment, both sides agreed that the likely circumstances of his infection with West Nile was a mosquito bite at work.

On Sept. 20, Kolbuc could no longer walk. He was admitted to hospital, where he stayed until he was transferred to a rehab clinic. He was eventually diagnosed with Polio-like acute flaccid paralysis (AFP) caused by the West Nile virus. His condition is incurable.

Both sides agreed that, if the contraction of West Nile was an “accident” then Kolbuc would be entitled to $130,000.

The insurance company argued that what happened to Kolbuc simply wasn’t an accident. Ace Ina said insurance law has recognized a distinction between accident and disease since 1861. In this case, it argued, Kolbuc’s disability was caused by a disease — West Nile. In insurance law, disease has been historically recognized as a subset of “natural causes” which are, by definition, not “accidents.”

Ace Ina pointed to the case of Sinclair v. Maritime Passengers’ Insurance Co. which it said established that disease that occurs through exposure to the elements would not be considered an accident unless the exposure itself was precipitated by an accident, such as a shipwreck. In fact, Sinclair specifically used malaria, another disease that is transmitted by mosquitoes, as an example of a disease that would be considered as proceeding from natural as opposed to accidental causes.

The court sided with the employer.

“(Kolbuc) suffered a rare and devastating consequence that came about not as the result of anything he did, but as the result of his body’s reaction to a virus,” said Justice Harriet Sachs.

She pointed out that there was nothing he did to cause his injuries, other than to be outside in the summer in Ontario.

“Rather, his injuries were caused by the actions of a mosquito that bit him and the reaction of his body to the virus that that mosquito was carrying,” said Justice Sachs. “Both parties accepted that there is nothing unexpected or unnatural about mosquitoes biting. By biting, mosquitoes do what they do in the ordinary or natural course of events. The question is whether the fact that the mosquito that bit Mr. Kolbuc was carrying the West Nile virus renders what happened to him an ‘accident’ as opposed to something that arose from ‘natural causes.’ In my view, it did not. West Nile virus is a disease that is transmitted to humans through mosquitoes. It was rare, but not unnatural, that the virus was transmitted to Mr. Kolbuc in this manner.”

A clause in the insurance policy that stated that “loss resulting from unavoidable exposure to the elements and arising out of hazards described above shall be covered,” did not sway the judge’s conclusion.

“I am prepared to accept that ‘exposure to the elements’ does encompass being bitten by a mosquito,” said Justice Sachs.

“However, for the loss from that exposure to be covered, it must arise out of the hazards covered by the policy, namely an accident. The clause does not broaden the meaning of the word ‘accident.’ It only broadens the type of loss that is covered if there is an accident.”

Therefore, while what happened to Kolbuc was “certainly tragic,” the court said, he was not entitled to compensation under the policy for an accident.

For more information see:

Kolbuc v. ACE INA Insurance, 2006 CarswellOnt 53 (Ont. S.C.J.)



About the West Nile virus

The West Nile virus originated in Uganda in the 1930s. The natural transmission cycle of the virus is from mosquitoes to birds to mosquitoes. Mosquitoes can transmit the virus to humans, but humans cannot transmit the virus to anyone or anything else.

The virus first made its way to North America in 1999 when it was detected in birds and humans in New York City. It first appeared in Ontario in August 2002. A total of 394 cases were confirmed in 2002. But the numbers declined to 89 cases in 2003 and just six cases in 2004.

Most people who are infected with the virus show no symptoms. One in five infected people develop non-specific fever illness that usually lasts a week. One in 150 infected people will show evidence of the virus attacking the nervous system. Of those with more severe neurological damage, less than five per cent have AFP. Thus, the probability that a person will develop AFP as a result of West Nile is one in 3,000.

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