In this case the Ontario Court of Appeal considers whether the victim of a tort can bring an action against his/her own insurer under an OPCF 44R endorsement, when the limits of recovery from the tortfeasor’s insurer have not been legally determined yet.
The facts are as follows. Mary Maccaroni's insurance policy with ING had an OPCF 44R endorsement, which guarantees compensation for Maccaroni over and above third-party liability if Maccaroni’s actual injury exceeds the amount of compensation available from the third-party’s insurer. Maccaroni was rear-ended by a vehicle driven by Kevin Kelly (who did not have a valid driver’s licence) and owned by his mother Donna Ainsworth. The Ainsworth vehicle was insured by Co-operators. Maccaroni settled with Ainsworth/Co-operators for $200,000, on the assumption that the compensation from Co-operators would be limited because Kelly did not have a valid licence. Maccaroni then sought to recover from ING for compensation over and above the $200,000. ING moved for summary dismissal on the grounds that the $200,000 settlement was not a liability limit “reduced by operation of law”, a determination that ING argued would be necessary to activate the residual OPCF 44R claim. The motion judge granted summary judgment dismissing the action.
MacFarland J.A. allowed the appeal. MacFarland J.A. agreed with the motions judge that the $200,000 settlement was not a liability limit “reduced by operation of law”, even though Maccaroni and Ainsworth/Co-operators had assumed that $200,000 would be the maximum limit when they settled. MacFarland J.A. noted that third-party liability insurance is intended as first loss insurance and OPCF 44R as excess. However MacFarland J.A. differed from the motions judge by finding that the third-party liability limit could be determined at trial, despite the fact that neither the tortfeasor (Kelly) nor the insurer (Co-operators) were parties to the case at bar.
May 30, 2011
Link to Decision
Ryan MacIsaac
No comments:
Post a Comment