The Court held that the primary insurer was the insurer of the vehicle in which the deceased was an occupant at the time of the accident. The Court held that the $1 million underinsured motorist protection limit was the global amount available to satisfy the claims of the three plaintiffs.

Mazur v. Citadel General Assurance Co., [2005] B.C.J. No. 2061, British Columbia Supreme Court

The deceased died as a result of injuries from a motor vehicle accident. The three plaintiffs, who were the deceased’s family members, brought a tort action against the defendant driver who had third party motor vehicle liability coverage from Co-operators, an out-of-province insurer. The plaintiffs sought additional compensation under the SEF 44 Family Protection Endorsements of three out-of-province insurance policies issued by Co-operators, Citadel and Liberty.

The Court held that Co-operators was the primary insurer. Under Clause 7 of the SEF 44 Endorsement, the primary insurer was the insurer of the vehicle in which the deceased was an occupant at the time of the accident (Co-operators). The issue was whether reliance upon the clause by the other two out-of-province insurers (Citadel and Liberty) was a “defence” to a claim which would have been unavailable if the policies had been issued in British Columbia. If so, reliance upon the clause would be contrary to s. 2(2)(b) of the Insurance Company Motor Vehicle Liability Insurance Regulation, B.C. Reg. 84/91 (the “Regulations”). The Court held that reliance upon Clause 7 of the SEF 44 Endorsement was not a “defence” to a claim but merely determined the scope of the insurers’ respective obligations to the plaintiffs. As such, Liberty and Citadel were entitled to rely on the clause. The Co-operators policy was primary and the Citadel and Liberty polices were excess.

Under the SEF 44 Endorsement, it was clear that the plaintiffs’ entitlement was limited to a global amount of $1 million. The issue was whether under the Regulations each plaintiff would be entitled to the $1 million limit. If so, under s. 2(2)(b) of the Regulations, the insurers would be precluded from relying on the global limit under the SEF 44 Endorsement.

The Court held that the $1 million limit was the global amount available to satisfy the claims of the three plaintiffs. Under the Regulations, the limit of coverage for underinsured motorist protection was $1 million per “insured person”. The plaintiffs submitted that each of them was entitled to seek compensation under the Family Compensation Act, R.S.B.C. 1996, c. 126, and that as such, each of them was entitled to the UMP coverage limit of $1 million under the Regulations. Under s. 148.1(1)(c) of the Regulations, however, an “insured” was defined as a person “entitled to maintain an action” against the underinsured motorist. The Court noted that in an action brought under the Family Compensation Act, the person “entitled to maintain an action” is the personal representative. Where the action is not brought by the personal representative, family members may bring it, but it is for the benefit of family members “as if…brought in the name of the personal representative”. In the result, the UMP coverage limit was not $1 million for each beneficiary of a family compensation action, but $1 million for the beneficiaries of the action as a whole.

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