Insured covered under automobile policy issued to common law spouse for an accident involving an uninsured van.
Faulds v. O’Connor,  N.S.J. No. 67, February 12, 2010, Nova Scotia Supreme Court, P. Bryson J.
The Insured/Defendant O’Connor was driving a van to Canadian Tire to replace a windshield wiper blade when he collided with a vehicle driven by the Plaintiff. The van the Insured was driving was leased by a client of his employer. Unbeknownst to him, the insurance on the van had been cancelled. However, the Insured was also a named driver on a policy of automobile insurance issued to his common law spouse by the third party Wawanesa Insurance Company (“Wawanesa”).
Some months after the accident, the Defendant Dominion of Canada Insurance Company (“Dominion”) brought a subrogated action in the name of the Plaintiff against the Insured to recover the Plaintiff’s property damage and car rental paid by Dominion. Default Judgment was entered and the Insured paid the Judgment personally.
The Plaintiff later retained counsel and commenced an action against the Defendant/Insured and the other Defendants for personal injuries resulting from the accident. Wawanesa applied to be added as a third party.
There were two motions before the Court. The first was brought by Wawanesa seeking summary dismissal of the Plaintiff’s claim on the basis of res judicata. The second motion was brought by the Plaintiff asking for a determination of whether Dominion and/or Wawanesa should respond and indemnify her with respect to her personal injury claim.
The issues before the Court were as follows:
1. Was the Insured insured under the Wawanesa policy at the time of the accident;
2. Was the Plaintiff entitled to claim section D coverage against Dominion; and
3. Was the Plaintiff’s action res judicata?
The Court found that the Insured was insured under the Wawanesa policy at the time of the accident. The key finding was that the Insured had only occasionally used the van which was within the risk contemplated by the extension of coverage under Wawanesa’s policy. As a result, the Court found that the Plaintiff was not entitled to claim under section D of her policy with Dominion. Section D provides the uninsured motorist provisions prescribed by the Insurance Act in Nova Scotia. These provisions only apply with respect to uninsured motorists.
Finally, the Court found that the doctrine of res judicata operated as a bar to the Plaintiff’s second action against the Defendant/Insured.
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