C.A. Rules Definitively On Limitation Period for Claim Under Underinsured Endorsement

In Roque v. Pilot Insurance Company, 2012 ONCA 311 (CanLII), the Court of Appeal dispelled any doubt about when the limitation period commences to run for a claim against an insurer that provides underinsured motorist coverage. It agreed with Master Ronald Dash’s conclusion, in McCook v. Subramaniam, 2008 CanLII 59323 (ON SC): “[t]he plaintiff’s case runs from when he has a body of evidence accumulated that would give him a ‘reasonable chance’ of persuading a judge that his claims would exceed $200,000.”

The limitation period in the underinsured motorist endorsement (OPCF-44) reads as follows:

Every action or proceeding against the insurer for recovery under this change form shall be commenced within 12 months of the date that the eligible claimant or his or her representative knew or ought to have known that the quantum of claims with respect to an insured person exceeded the minimum limits for motor vehicle liability insurance in the jurisdiction in which the accident occurred, but this requirement is not a bar to an action which is commenced within 2 years of the date of the accident.

It rejected the argument that the limitation period only starts to run when the plaintiff’s damages have been quantified by settlement or judgment. It also rejected an alternative submission, that “the limitation period does not begin to run until the plaintiff knows that the quantum of the claim is greater than the tortfeasor’s insurance coverage”.

This is a problematic ruling for plaintiffs’ lawyers. The commencement date found by the Court of Appeal to apply is so subjective (and therefore uncertain) that most actions against underinsured insurers will probably be routinely commenced at the same time as the proceeding against the at-fault party.

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