Canada Case Law

Rodriguez-Vergara v. Lamoureux

Court

Court of Appeal for Ontario

The OPCF 44R endorsement is excess to motor vehicle liability insurance only and therefore, after the at-fault vehicle's $300,000 third-party liability limit is paid, the OPCF 44R (RSA) stands in priority before the defendant's PLUP; the OPCF 44R insurer may not deduct PLUP amounts from its payment nor pursue a third-party claim against the at-fault insurer Certas or subrogate against Certas to recover OPCF 44R payouts; appeal dismissed and motion judge's priority ruling and related orders upheld.

Source excerpt

• Underinsured motorist coverage
• Priority of insurance coverages
• Family protection endorsement opcf 44r
• Personal umbrella liability policy (plup)
• Subrogation
• Third-party claims

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Hesch v. Langford

Court

Court of Appeal for Ontario

Section 1.6(a)(ii) of the standard 44R endorsement, properly interpreted, creates a single ownership exclusion (occupant of another automobile who leases or owns that automobile) that is qualified by the following clause: coverage is nevertheless available if family protection coverage is in force in respect of the other automobile; therefore Ashley was an "insured person" under Joe's 44R. Consequently Joe's 44R (Kent) is first loss for his excess damages under s.18(a)(ii) because the policy is in his name; for the other plaintiffs excess damages beyond the $200,000 uninsured motorist coverag…

Source excerpt

• Uninsured motorist coverage
• Underinsured motorist coverage
• Priority of insurance
• Policy interpretation
• 44r family protection endorsement
• Contribution and pro rata allocation

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Schroeder v. Co-operators General Insurance Company

Court

Court of Appeal for Ontario

The motion judge correctly found that the April 15, 2016 communications did not constitute a demand for payment of compensatory damages, so the limitation period did not begin until the February 13, 2019 indemnification request; the Court of Appeal dismissed the appeal and affirmed the denial of summary judgment.

Source excerpt

• Underinsured motorist coverage
• Limitations act, 2002
• Demand obligation
• Summary judgment standards

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Dosanjh v. Johal

Court

Supreme Court of British Columbia

The court granted declarations allowing ICBC to advance underinsured motorist payments to the plaintiff while preserving the Johal defendants’ insurance limits and other claimants’ pro rata shares.

• Underinsured motorist coverage
• Pro rata distribution of third party limits
• Declarations
• Advance payments
• Underinsured-motorist-coverage
• Pro-rata-distribution

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Tuffnail v. Meekes

Court

Court of Appeal for Ontario

State Farm’s subrogated third party claim effectively placed Coulthard’s liability to the plaintiff in issue such that Coulthard was a person "jointly liable" with the inadequately insured motorist for purposes of s.7 OPCF44R and the limits of Coulthard’s policy were "available" and deductible; s.278(2) applies to pro rata sharing of subrogation recoveries and the trial judge’s pro rata sharing order was amended to run until plaintiffs receive full indemnification under the judgment; prejudgment interest must be at the default bank rate (1.3%) because the trial judge misapplied s.130 factors;…

Source excerpt

• Underinsured motorist coverage
• Opcf 44r interpretation
• Subrogation
• Pro rata recovery (s.278(2))
• Prejudgment interest (s.127/130 cja)
• Limitation defence

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Kahlon v. ACE INA Insurance

Court

Court of Appeal for Ontario

The endorsement (OPCF 44R) is subject to the policy's limits, terms, conditions and exclusions under s.22; s.2.2.3 Special Conditions of the OAP1 policy (including exclusion for vehicles with GVWR over 4,500 kg and business-use exclusions) apply to prevent extension of underinsured coverage to the heavy commercial vehicle involved in the accident, so AllState is not obliged to pay; ACE INA likewise is not obliged under its fleet policy (including enforceable endorsement 11A excluding heavy vehicles).

Source excerpt

• Underinsured motorist coverage
• Opcf 44r / family protection endorsement
• Standard form insurance contracts
• Policy v. endorsement interaction
• Contra proferentem
• Insurance act (provincial)

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Kahlon v. ACE INA Insurance

Court

Court of Appeal for Ontario

The court did not reach a final determination on the interpretation of OPCF 44R or OAP 1; instead it concluded the existing record was insufficient given the potentially broad impact of the legal issue and adjourned the appeal sine die to permit the parties to enlarge the record, possibly with expert evidence, and to propose a plan or request appointment of amicus counsel.

Source excerpt

• Underinsured motorist coverage
• Opcf 44r endorsement
• Ontario automobile policy (oap 1) s.2.2.3
• Summary judgment under r.21.01(1)(a)
• Fleet insurance coverage

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McBrien v. Insurance Corporation of British Columbia

Court

Supreme Court of British Columbia

The court held ING did not prove valid cancellation of an Alberta auto policy before the accident, so the policy remained in force and ING was liable for coverage.

• Policy cancellation
• Notice by registered mail
• Underinsured motorist coverage
• Power of attorney and undertaking (pau) reciprocity
• Insurance-law
• Policy-cancellation

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Hartley v. Security National Insurance Company

Court

Court of Appeal for Ontario

The court held that Minnesota qualifies as an "inadequately insured motorist" under OPCF 44R because Minnesota's statutory scheme creates a legislated financial guarantee 'required by law in lieu of insurance' but caps recoverable damages, producing a shortfall between damages legally proved and amounts collectible; however OPCF 44R expressly excludes costs and legal fees (ss.6,7,13), so U.S. legal fees incurred in obtaining the Minnesota settlement are not recoverable from the insurer as either policy benefits or special damages.

Source excerpt

• Underinsured motorist coverage
• Opcf 44r endorsement
• Family protection coverage
• Statutory immunity and tort claims acts
• Recoverability of legal costs
• Interpretation of standard form insurance contracts

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Vlanich v. Typhair

Court

Court of Appeal for Ontario

No private law duty of care existed between the Township and the injured interveners for negligent enforcement of the taxi licencing bylaw requiring $1,000,000 liability insurance; alternatively, residual policy considerations negate recognition of such a duty; the trial judge did not err in finding the Township met the applicable standard of care; appeal dismissed.

Source excerpt

• Negligence
• Duty of care
• Bylaw enforcement
• Underinsured motorist coverage
• Causation
• Standard of care

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