The Court declared that the OPCF 44R endorsement provided coverage for a motor vehicle collision in Jamaica involving underinsured motorists. Although the Ontario Insurance Act and the standard Ontario Automobile Policy (OAP1) contained territorial limitations with respect to uninsured motorists, it was ambiguous whether the territorial limitations applied to underinsured motorists under the OPCF 44R endorsement.

Sutherland v. Pilot Insurance Co., [2006] O.J. No. 2663, Ontario Superior Court of Justice

The insured was a passenger in a vehicle which was involved in a head-on collision in Jamaica. The collision resulted from the negligence of one or both of the drivers. The insured’s policy of automobile insurance (a standard OAP1) contained an OPCF 44R endorsement with limits of $1,000,000. No other insurance was available in Ontario. The best available evidence indicated that, in Jamaica, each vehicle had a policy of insurance, which may be available, with limits of approximately $18,400, per vehicle. The insured sought a declaration that the OPCF 44R endorsement provided coverage for the collision.

The territorial limitation imposed by section 243 of the Ontario Insurance Act was amended in 2002 to extend the territorial limitations to coverage dealing with “uninsured” or “unidentified” vehicles. “Underinsured” vehicles are not specifically mentioned in the Insurance Act.

The insurer contended that “underinsured” motorists are subsumed in the principles relating to “uninsured” motorists because the purpose for such coverage is the same. The insurer further contended that where “uninsured” coverage is clearly circumscribed by territorial limitation, it would be illogical to carve out a subsection of “uninsured” motorists, namely “underinsured” motorists, and extend insurance coverage not otherwise available with respect to “uninsured” motorists.

The Court held that the scheme makes a distinction between “underinsured” motorists and “uninsured” motorists. The Court cited several sections in the Insurance Act, the OAP1, and OPCF 44R, and held that no specific drafting measures were used to specify that “underinsured” motorists were subject to territorial limitation. It was ambiguous whether the territorial limitations in the Ontario Insurance Act and the standard OAP1 applied to “underinsured” motorists. In the face of the ambiguity, the court declared that the OPCF 44R endorsement provided coverage for the collision in Jamaica.

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