A passenger in an uninsured vehicle may be entitled to obtain uninsured motorist coverage from the other [insured] vehicle involved in the accident

A plaintiff injured while riding as a passenger in an uninsured vehicle which collided with another insured vehicle may be entitled to the other vehicles uninsured motor vehicle coverage pursuant to section 224 of the Ontario Insurance Act.  The injured party relied upon Taggart v. Simmons (2001) 52 O.R. (3d) 704.

McCardle v. Bugler, [2007] O.J. No. 3614, Ontario Court of Appeal, M. Rosenberg, P.S. Rouleau JJ.A. and G.P. Killeen J. (ad hoc), September 25, 2007

The Plaintiff was injured while riding as a passenger in the Defendant’s uninsured vehicle which collided with another vehicle. The other vehicle was insured under the Provincial motor vehicle insurance scheme, which included uninsured motorist coverage. The Plaintiff sought coverage under the policy covering the offending vehicle on the basis of the prior decision of the Ontario Court of Appeal in Taggart (litigation guardian of) vs. Simmons (2001), 52 O.R. (3d) 704. The Motions Judge distinguished Taggart by finding that the standard automobile insurance policy considered there was different than the policy at issue in this case. An appeal was taken from that decision by the Minister of Finance in the name of the Defendant driver.

The Court of Appeal noted that entitlement to uninsured motorist coverage in Ontario is governed by Statute, Regulation and the terms of the applicable motor vehicle policy. Section 265 of the Ontario Insurance Act requires that every motor vehicle insurance contract provides uninsured motorist coverage to “a person insured under the contract”. The Appellant, however, relied on the extended definition of “insured” in Section 224 of the Act, which includes “a person insured by a contract whether named or not and includes every person who is entitled to statutory accident benefits under the contract whether or not described therein as an insured person”. The definition in the Act of “insured person” for the purpose of entitlement to statutory accident benefits included “a person who is involved in an accident involving the insured automobile”. Given that the offending vehicle was an “insured automobile”, it was common ground that the Plaintiff would be entitled to statutory accident benefits from the Insurer of the offending vehicle and would come within the Section 224 definition of insured. The issue for the Court was whether the definition of insured in Section 224 informed the narrower Section 265 definition of “person insured under the contract”, thereby entitling the Plaintiff to uninsured motorist coverage.

The Court considered the facts and rationale from Taggart, where the Court of Appeal had concluded that the expanded definition of insured in Section 224 informs the narrower definition of “person insured under the contract”.  The Court held that Taggart could not be limited as suggested by the Insurer for the offending vehicle, who argued that Taggart should only apply in respect of entitlement to statutory accident benefits and not in cases involving entitlement to uninsured motor vehicle coverage. The Court further held that it could not be shown that the panel of the Court of Appeal in Taggart had failed to consider judicial or statutory authority that was binding on it, and that it would have decided the case differently had such authority been considered.

In the result, the Court allowed the appeal and set aside the Order of the Motions Judge dismissing the Plaintiff’s claim against the Insurer of the offending vehicle for uninsured motorist coverage, with costs.

This case was originally summarized by Shanti Davies and originally edited by David W. Pilley.

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