Master Pope Refuses To Add Insurer in OPCF-44R Claim

Vogler v. Lemieux, 2012 ONSC 1692 is an interesting case and, to me, a bit puzzling. I am hoping that one of the readers of this blog can clear things up for me.

The plaintiff was injured in a single vehicle accident in 2006. He was the owner of the car, which was insured with Allstate. After the accident, the plaintiff was found alone in the passenger seat. He claimed to have no recollection of the accident or the events leading up to it. Although the plaintiff claimed that someone else had been operating his car, he was charged with impaired driving.

The plaintiff sued Allstate under the unidentified motorist coverage. After that action was underway, an individual named Lemieux came forward and admitted to being the driver of the car at the time of the accident.

The impaired driving charges were dropped against the plaintiff. Lemieux was added as a defendant in the lawsuit, in place of Allstate. However, Allstate denied coverage to Lemieux, on the basis that his licence had been under suspension for many years, which was a breach of statutory condition 4. Allstate had itself added to the action as a statutory third party.

Apparently, counsel for the plaintiff then proceeded on the assumption that because of Lemieux’s policy breach, the most that the plaintiff could recover in the lawsuit was the statutory minimum limits of $200,000, for which Allstate would have been absolutely liable under s. 258(4) of the Insurance Act. After the pre-trial though, the plaintiff’s lawyer “determined that the plaintiff would have to access his underinsured coverage on the basis that a violation of the O.A.P. 1 Ontario Automobile Policy by Lemieux for being unlicensed would not disentitle the plaintiff access to his OPCF 44R Family Protection Coverage”. As a result, this motion was brought for leave to add Allstate as a defendant, with a claim being made against it pursuant to its underinsured coverage in the OPCF-44R endorsement.

Master Pope dismissed the motion. She concluded that in light of the definition of “inadequately insured motorist”, the claim against Allstate could not succeed. Master Pope accepted Allstate’s argument, which she summarized as follows:

Allstate submits that if it is found that Lemieux was driving the plaintiff’s vehicle, and aside from the fact that his liability coverage may be reduced to $200,000 on the basis that he had a suspended license breaching Statutory Condition 4 – Authority to Drive of the Standard Automobile Policy – OAP1, the plaintiff will be unable to prove that Lemieux meets the definition of “inadequately insured motorist” because the definition states that an inadequately insured motorist means “. . . the identified driver of an automobile for which the total motor vehicle liability insurance . . . obtained by the owner or driver is less than the limit of family protection coverage.” In other words, since the motor vehicle liability insurance obtained by the owner, here the plaintiff of $1 million, is equal to the limit of family protection coverage of $1 million, the definition of “inadequately insured motorist” as set out in s. 1.5(a) cannot be met.

So far, so good. I agree with all of this.

But what I am having some difficulty in understanding is why it would even be necessary to claim directly against Allstate? If Lemieux was, in fact, the driver and if he was driving with the consent of the plaintiff, then why wouldn’t the plaintiff, in his capacity as owner, be liable for Lemieux’s negligence? A breach of statutory condition #4 by the driver doesn’t affect coverage for the owner, so long as the owner has not “permitted” the driver to operate the insured vehicle without being authorized by law to do so. (This will normally require some knowledge on the part of the owner: see a recent example, Wawanesa v. SC Construction Ltd., 2012 ONSC 353 (CanLII).) Assuming that the plaintiff in the present case knew nothing about Lemieux’s licence suspension, it seems pretty unlikely that he (the plaintiff) would be found to be in breach of statutory condition #4.

So, to put it bluntly, why couldn’t the plaintiff have sued himself, in his capacity as owner of    the car and recovered his judgment in full from Allstate?

I would not have thought that the answer would be as simple as, “no one can sue himself” (although Master Pope’s reasons actually do say, in a somewhat different context, that the plaintiff “cannot claim against himself”). In fact, that is not always true. In Dionisi v. Dionisi, 1983 CarswellOnt 684, 1 C.C.L.I. 268, 42 O.R. (2d) 597, 149 D.L.R. (3d) 563, [1983] I.L.R. 1-1677 (H.C.), for example, Mr. Justice R.E. Holland permitted a husband to advance an FLA claim against himself, as owner of the car in which his wife had been killed as a passenger.

The present case strikes me as an analogous situation to that in Dionisi.  However, I suspect that I’m overlooking something more fundamental. Help!

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2 Responses to Master Pope Refuses To Add Insurer in OPCF-44R Claim

  1. Kevin Doan says:

    It seems to me that the decision was respectfully wrong. Vogler (plaintiff) had not been proven by Allstate (who has burden of proof) to have done anything wrong and yet the coverage he bought for 1M turned out to be only 200K in reality! This can not be what the plaintiff expected when he bought the coverage.

    The plaintiff’s concession at para. 20 that he could not sue himself was unnecessary and probably wrong, and it confused the issue.

    The answer seems to me to be that the plaintiff can access Allstate 1M via this route:
    1. The family protection coverage is 1M. This amount does not fluctuate at any relevant time.
    2. The coverage of the driver (defendant) as AT the time of the accident, given and assuming successful policy breach, is actually 200K.
    3. Therefore the coverage of the driver is less than the family protection coverage.
    4. Because “or” was used in stating the owner “or” driver having inadequate insurance, (3) above triggers access to the 1M underinsured coverage.

    Please email me directly at kdoan@carranza.on.ca for any comments. I hope to learn of any oversight on my part as well.

    Please let me know if you have found further insights since your post. I have not searched if the decision was appealed

  2. One cannot be a tortfeasor in respect of oneself, but one can make a claim against oneself so as to access a policy that is obliged to respond when one is both vicariously liable car owner and tort victim of an uninsured (by reason of a suspended license) tortfeasor/driver (of same car).

    This ought to the law and in my estimation will be (though probably stated more elegantly by a Judge of the CoA) if Vogler appeals/sue himself.

    Given the potential liability of Volgler’s lawyer if this decision stands, is a LAWPRO-funded appeal not assuredly in the works? Or is the answer for Vogler to now sue himself and to employ the “litigation finger” doctrine if a limitations argument is raised by State Farm?

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