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OPCF 44R policies pay before umbrella policy; no subrogation rights against umbrella insurer.
In supplemental reasons following an earlier decision, the court addressed the priority of payment and subrogation rights between OPCF 44R insurers and an umbrella policy (PULP) insurer, following the Court of Appeal's decision in Rodriguez-Vergara v. Lamoureux.
The court held that the at-fault drivers' automobile policy is primary, followed by the respective OPCF 44R endorsements, and finally the PULP.
The court also held that the OPCF 44R insurers have no right of subrogation against the umbrella insurer, and their subrogation rights against the at-fault drivers directly are limited to the amount by which their payment exceeds the combined automobile and excess policy limits.
A personal liability umbrella policy without a filed statutory undertaking is not a motor vehicle liability policy for the purposes of underinsured motorist coverage.
Eight consolidated actions arising from a motor vehicle accident on November 30, 2021, in London, Ontario, in which the defendant driver failed to stop at a red light and struck members of the London 120th Brownies, killing one child and injuring several others.
The court determined whether the defendants' personal liability umbrella policy constituted a motor vehicle liability policy under the Insurance Act and the OPCF 44R Family Protection Coverage endorsement.
The court held that the umbrella policy was not a motor vehicle liability policy and therefore the defendants were inadequately insured motorists.
The plaintiffs were entitled to access their own OPCF 44R coverage, with the aggregate available insurance limits of $2.3 million to be divided pro rata among all eligible claimants.
The court struck the defendant's statement of defence due to his chronic non-compliance and sovereign citizen arguments.
The plaintiff brought a motion to strike the defendant's statement of defence due to the defendant's chronic non-compliance with court orders, including failure to provide undertakings and pay costs, and his persistent assertion that he is not subject to the court's jurisdiction.
The court granted the motion, finding that the defendant's conduct made it impossible to advance the matter and that striking the defence was the only proportionate remedy.
