Rodriguez-Vergara v. Lamoureux
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
In February 2017 a vehicle owned by one defendant and driven by another struck the plaintiff. Everyone accepted that the damages would exceed the owner's auto liability limit of $300,000, making the defendants inadequately insured motorists. The plaintiff's own auto policy carried a $1 million limit and included the OPCF 44R family protection endorsement, which responds when the at-fault motorist is underinsured. The owner also held a $1 million personal umbrella liability policy with her auto insurer. The question was which coverage would be called on after the first $300,000: the plaintiff's own endorsement or the owner's umbrella policy. A motion judge decided that the endorsement pays next, up to $700,000, followed by the umbrella policy, and that the plaintiff's insurer could not reduce its payment by the umbrella limit or pursue the umbrella insurer.
What the Court Decided
Justice Wilson, for a unanimous panel, dismissed the appeal. The Court read the priority wording in the endorsement in context: it deals with amounts available from the insurers of the underinsured motorist under motor vehicle liability insurance, or funds in lieu of it. A personal umbrella liability policy is not a motor vehicle liability policy, so it does not count in that comparison. The result is that the first $300,000 comes from the at-fault auto policy, the next $700,000 from the plaintiff's endorsement, and only then the umbrella policy. The Court also rejected the plaintiff's insurer's attempt to recover from the umbrella insurer through subrogation or a third-party claim, finding that this would effectively reverse the priority the endorsement establishes and produce an absurd result. The Court did not decide the amount of the plaintiff's damages or whether the defendants were at fault; those matters were not in issue on the appeal.
When the at-fault driver's insurance is too small for a serious injury, the order of the policies decides who pays and when. This ruling settles that order for a common situation in Ontario auto claims.
Does This Affect You?
- ✓You were injured by a driver whose auto liability limits are low compared with your losses.
- ✓You carry the family protection endorsement (OPCF 44R) on your own auto policy.
- ✓The at-fault driver or the vehicle owner may also have a personal umbrella or excess policy.
Key Takeaways
- Your own family protection coverage is positioned ahead of the at-fault owner's personal umbrella policy, not behind it.
- In this ruling, the word insurers in the endorsement refers to auto insurers and auto policies, not every kind of insurance.
- An insurer paying under the endorsement cannot necessarily recover from the at-fault side's umbrella insurer to make up what it paid.