Hesch v. Langford
This page is a summary and commentary on a publicly available court decision, written for general informational and educational purposes only. It is not legal advice and does not create a lawyer-client relationship with Azimi Law, regardless of how specific or applicable it may seem to your situation.
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The Facts
A driver with no insurance caused a collision that killed a woman who was alone in her own car. Her husband, children, mother, stepfather and brother brought claims under the Family Law Act for loss of care, guidance and companionship. Two insurers were involved. Pafco insured her vehicle, and Kent and Essex Mutual insured her husband's vehicle, and each policy carried the OPCF 44R family protection endorsement. Pafco settled with the plaintiffs and then asked the court to say that Kent was the priority insurer or, at least, had to carry a proportionate share. The motion judge dismissed that claim, reading the endorsement's definition of insured person to mean she was not covered under her husband's policy while occupying a vehicle she owned. Pafco appealed on that single point of interpretation.
What the Court Decided
The panel of Justices Paciocco, Monahan and Wilson allowed the appeal, with reasons written by Justice Paciocco. The relevant provision, section 1.6(a)(ii), covers the named insured and a spouse while occupying another automobile, except where that person leases the vehicle for more than 30 days or owns it, unless family protection coverage is in force on that vehicle. The motion judge had treated this as two separate exclusions. The Court of Appeal held that it creates one exclusion for owned or long-term leased vehicles, and that the exclusion falls away if the vehicle has its own family protection coverage. The word "unless" ties to the ownership exclusion, and the drafters would have written "or" if they had meant two. Other parts of the endorsement, including its definitions for corporate policies and its provisions on excess and multiple coverage, also assume that both vehicles can carry the endorsement at once, and an older appellate-level decision took the same view. Because the woman's own car had the endorsement, she was an insured person under both policies. The court added that section 22 makes the endorsement's own terms prevail over the standard policy where they speak to the same topic, so the standard policy's exclusion for a vehicle that the insured owns or regularly uses did not apply, that the Insurance Act's section 277 priority rules for primary liability policies do not govern these endorsements, and that section 7 of the endorsement deals with how much is payable, not whether coverage exists. All the plaintiffs were eligible claimants under both endorsements. The appeal court did not decide the amount of any claimant's damages.
Many families insure two vehicles with the endorsement, sometimes through different insurers. This decision confirms that owning the car you were in does not on its own remove cover under the other spouse's endorsement, so more than one insurer may share the loss. It turns on the wording of one provision in the standard endorsement and on a dispute between insurers; it does not set the value of anyone's claim.
Does This Affect You?
- ✓A spouse or family member was killed or seriously hurt by an uninsured or underinsured driver while driving their own car.
- ✓Your household has two insured vehicles, perhaps with different insurers, and each policy has family protection coverage.
- ✓An insurer says the injured person is excluded from its endorsement because they owned the vehicle they were in.
Key Takeaways
- If the injured person's own vehicle has its own family protection coverage, the spouse's endorsement can respond too.
- The endorsement's wording can prevail over the standard policy's general exclusion for a vehicle you own or regularly use.
- Check every policy in the household for the endorsement, because which insurers share the claim, and in what proportion, depends on it.