A claim for underinsured motorist protection must be specifically pled

The defendant insurer was successful in its motion to appeal a decision allowing the plaintiffs to amend their pleadings to include an uninsured motorist claim over 10 years after the accident.

MacGregor v. Royal and Sun Alliance Insurance Co. of Canada, [2009] O.J. No. 3573, June 24, 2009, Ontario Superior Court of Justice, H. MacLeod-Beliveau J.

The plaintiff, MacGregor, was involved in an accident with Ms. Vos, an underinsured motorist, in 1998. The owner of the vehicle as well as the insurer for the owner and Ms. Vos, were not identified. MacGregor obtained a default judgment against Ms. Vos for over $260,000 in May 2006.

In September 2006, MacGregor commenced a second action against Royal and Sun Alliance Insurance Co. of Canada in order to collect on the default judgment against Ms. Vos, claiming on the uninsured endorsement, but not on the underinsured endorsement.

In April 2009, MacGregor successfully brought a motion to amend his statement of claim to include the underinsured endorsement. The motions judge found that although the statement of claim did not expressly spell out the relief claimed and was defective, it would not cause prejudice to the defendant, and could be amended.

The judge, in granting the leave to appeal, decided the proper test was for the moving party to show there was a good reason to doubt the correctness of the decision. He found that on the facts of this case, there was. The issues raised were of great importance to the development of the law and the administration of justice that would affect Ontarians generally, and should be debated for resolution by a higher level of judicial authority.

This case was originally summarized by Neil J. MacDonald and originally edited by David W. Pilley.

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