DATE: 20021004 DOCKET: C37619

COURT OF APPEAL FOR ONTARIO

RE: TRACEY FOSTER (Plaintiff (Respondent)) - and - ROBERT J. YOUNG and SUPERINTENDENT OF INSURANCE (Defendants (Respondents)) - and - ECONOMICAL MUTUAL INSURANCE COMPANY (Third Party (Appellant))

BEFORE: ABELLA, MOLDAVER and FELDMAN JJ.A.

COUNSEL: David Zuber For the appellant Greg Neinstein For the plaintiff (respondent) Tracey Foster Glenn Williams For the defendants (respondents) Robert J. Young and Superintendent of Insurance

HEARD: SEPTEMBER 30, 2002

RELEASED ORALLY: SEPTEMBER 30, 2002

On appeal from the order of Justice Paul Rivard of the Superior Court of Justice dated January 4, 2002

E N D O R S E M E N T

[1] [1] We would dismiss the appeal for the reasons given by Rivard J. On the first issue, dealing with the limitation period, he stated at paragraphs 25 and 26 of his reasons:

I do not accept the submissions of counsel for Economical as they relate to the Plaintiff’s action being clearly barred by the two year limitation period. I agree with the position that there are various methods by which an insured can commence an action against an insurer under the uninsured motorist coverage provisions of the policy. In Johnson v. Wunderlich (1986), 57 O.R. (2d) 600 (C.A.) three methods were stated, namely:

(1) The injured insured may sue the tortfeasor only [and] after recovering judgment, he can demand payment from the insurer.

(2) The injured insured can sue his insurer only.

(3) The injured insurer can sue both his insurer and the tortfeasor in the same action.

In cases such as this one where the tortfeasor but not the insurer has been sued, the cause of action against the insurer arises only after judgment and demand for payment is made from the insurer and refused.

[1] [2] Denial of coverage before an action is commenced against the insurer is not a denial which triggers the commencement of the limitation period against the insurer, referred to by Finlayson J.A. in Caruso v. Guarantee Co. of North America (1996), 31 O.R. (3d) 339 (C.A.) at p. 347. As stated in Johnson v. Wunderlich, supra, it is the denial of the claim made by the insured against the insurer after obtaining judgment against the tortfeasor which can trigger the commencement of the limitation period.

[2] [3] The second issue is whether Rivard J. was correct in following this court’s decision in Taggart (Litigation Guardian of) v. Simmons (2001), 52 O.R. (3d) 704 and holding that the plaintiff is an insured under the Economical policy as a named driver. We agree with Rivard J. that Taggart is determinative in these circumstances.

[3] [4] The appeal is therefore dismissed with costs, fixed at $2,800 for the respondent Young, and $3,000 for the respondent Foster.

Signed: “R.S. Abella J.A.”

“M.J. Moldaver J.A.”

“K. Feldman J.a.”