February, 03 2004
Richard Bogoroch represented the Pagonis family at the trial of a legal issue to determine how much insurance coverage was available to satisfy the plaintiffs’ claims. The defense argued that there was $200,000 available, while Richard Bogoroch successfully argued that there was $1 million.
Pagonis et al v. Long et al
Reasons for Judgment
Before the Honourable Mr. Justice H. Spiegel
On Tuesday, February 3, 2004
Counsel for the Plaintiffs: Bogoroch, R. Mr.
Counsel for the Plaintiffs: Regan, J. Mr.
SPIEGEL, J. (Orally):
The agreed Statement of Facts admits that the owner of the vehicle in question was identified as Terry Long. There is a dispute between the parties as to whether the driver of the vehicle was identified.
The issue before me is, whether under those circumstances Terry Long is an inadequately insured motorist within the meaning of Section 1.5 of the OPCF Family Protection (OPCF 44) Coverage of the automobile policy of the plaintiffs issued by the defendant insurer.
Section 1.5 provides that an inadequately insured motorist means, … “the identified owner or identified driver of an uninsured automobile as defined in Section 5 of the Uninsured Automobile Coverage of the policy”.
The policy in question is the OAP1 Owners policy. Section 5 deals with the Uninsured Automobile coverage. An uninsured automobile is defined in Paragraph 5.1.2 of that Section as: “An uninsured automobile is one for which neither the owner nor the driver has liability insurance to cover bodily injury or property damage arising out of its ownership use or operation —”. It is admitted that the Long vehicle is an uninsured vehicle.
The submission of the defendant insurer is that he word “or” in Section 1.5 of the OPCF 44 should be interpreted conjunctively. In other words, it is submitted that both the owner and driver of the motor vehicle must be identified in order for there to be an “inadequately insured motorist”. This submission has no merit. The plain meaning of the word “or” in the context of the 1.5(b) is that if either the owner or the driver is identified they fall within the definition of an inadequately insured motorist, provided that an uninsured automobile is involved.
This conclusion is bolstered when on looks at the insuring agreement which limits recovery to the amount that the eligible claimant, “is legally entitled to recover from an adequately insured motorist”. If there is both an unidentified driver and an unidentified owner, the claimant would not be able to recover against either.
It is implicit in the reasoning of the Court of Appeal in Chilton et al v. Co-operators 32 O.R. (3d)161 that if the vehicle had not been stolen and therefore, driven without the consent of the identified owner, that the court would have found that the family Protection Endorsement coverage applied.
Where the court finds that the vehicle in question was being driven without the consent of the owner, the vicarious liability provision of the Highway Traffic Act, Section 193, does not impose liability on the owner. The eligible claimant would have no right to recover from the identified owner and therefore would not fall within the terms of the insuring agreement.
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