In Ontario, driving with automobile insurance is mandatory. As a result, those injured in a motor vehicle accident have the peace of mind of knowing that after an accident they can claim compensation against the at-fault party, which is usually responded to by that party’s insurance company.
However, this begs several questions. What happens if the other party is uninsured? What if the other party flees the scene and is unidentified? Lastly, what if the other party doesn’t have enough insurance coverage to pay for your injuries?
Although the law is very complex in how these situations apply, the following is a very basic framework for understanding how these issues are dealt with.
In situations where the at-fault party cannot be identified following an accident (for example, a hit and run) or where they are uninsured, s. 265 of the Insurance Act allows for one’s own insurance company to provide coverage for indemnification up to $200,000.00 provided there are no other automobile policies available from which coverage can be claimed.
Essentially, one’s own automobile insurance company steps into the shoes of the uninsured/unidentified at-fault party in order to provide coverage to the injured claimant.
All automobile insurance policies in Ontario must provide this coverage to their insureds, which is certainly better than having no coverage at all. However, $200,000.00 is not always enough, especially when very serious injuries are sustained or when there are multiple claimants in the same accident (for example, other injured passengers) who are sharing the $200,000.00 on a pro-rata basis.
The above deals with situations where there is NO coverage available from the other at-fault party (“Uninsured” situations). However, the law also creates avenues to deal with INSUFFICIENT coverage (“Underinsured” situations) discussed below.
Coverage called OPCF-44R coverage protects you when the at-fault motorist that injures you has insufficient coverage. Also known as Family Protection Coverage, this endorsement coverage is available to all as optional coverage through your insurer.
This coverage allows you to claim the difference between your automobile coverage limits and the insufficient limits from the other at-fault party. For example, let’s assume you had Family Protection Coverage available to you up to $1,000,000. You then get rear ended by an at-fault driver with insurance limits of only $500,000. In that case, you can claim the additional $500,000 shortfall through your insurer. This coverage would not apply if both policies had matching limits (as there would be no difference).
Essentially, this coverage provides protection to you or an eligible member of your family up to your own coverage limit when involved in an accident with an at-fault party with inadequate coverage.
Those entitled to claim Family Protection Coverage must be “eligible claimants” defined as “an insured person” which includes the “named insured or his or her spouse and any dependent relative of the name insured and his or her spouse” as set out in the standard OPCF-44R Family Protection Coverage Provisions.
The ordeal of a car accident is trouble enough let alone being faced with a coverage issue. Thankfully, the law allows some ways to protect accident victims from otherwise inadequately insured motorists.
Don’t assume you have no recourse because you cannot identify the at fault party.
There are remedies available to obtain compensation following a motor vehicle accident even when the other driver is unidentified or uninsured. It is always best to speak with an experienced personal injury lawyer to help you understand your rights.