In Ontario an OPCF 44-R insurer is only liable to provide insurance coverage if no other insured party has any liability

OPCF 44-R carrier was not liable to plaintiff for any damages within the policy limits of the insured defendant’s policy.

Lefebvre-Jackson v. Salt, [2012] O.J. No. 1234, March 15, 2012, Ontario Superior Court of Justice, D.R. McDermot J.

The plaintiff was a passenger in a motor vehicle driven by a defendant. That defendant’s vehicle was struck by another vehicle driven by a co defendant, who was uninsured. The defendant, Unifund Assurance Company, is an OPCF 44-R carrier and is only obliged to pay as excess insurer if no other insured party has at least one percent liability. The insured defendant had liability insurance through the Co-operator’s General Insurance Company. Unifund sought a declaration that it was not liable for the first $200,000 of damages, being the policy limits under the Co-operator’s policy. Unifund also sought summary judgment for a declaration that the insured defendant was at least one percent at fault, which would have had the effect of taking Unifund out of the action.

The court dismissed Unifund’s motion for summary judgment on the basis that the issue of the insured defendant’s liability required a trial. However, the court declared that as between Unifund and the Co-operator’s, if the court finds that damages are in excess of $200,000, less all statutory deductions, Unifund will not have to pay any share of that first $200,000.

This case was digested by Cameron B. Elder and edited by David W. Pilley of Harper Grey LLP.

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