Skip to main content

Determining Limitation Periods To Claim Insurance From Own Insurer

Lingard v. Milne-McIsaac, 2015 ONCA 213 – This Court of Appeal case arises from a motor vehicle accident which occurred on October 28, 2008. The plaintiff sustained injuries when his vehicle was rear-ended by an uninsured vehicle. The Motor Vehicle Accident Report (MVA Report) prepared by the police at the scene of the accident listed the driver, owner and insurance company. On June 29, 2010, the plaintiff’s doctor determined that he would require back surgery as a result of the accident. The plaintiff commenced a Statement of Claim on September 24, 2010 seeking damages from both the driver and owner of the vehicle.
On or about January 25, 2011, the plaintiff learned that the defendant vehicle was uninsured and the insurance was cancelled prior to the subject accident. As a result, the plaintiff brought a motion for leave to amend his Statement of Claim to claim uninsured motorist coverage from his insurer, Wawanesa Insurance Company. The motion judge denied the plaintiff leave, finding that the plaintiff’s due diligence fell short of the standard set out in Wakelin v. Gourley (2005), claiming that he should have taken “additional steps” to make inquiries with the insurer listed in the MVA Report.
It was determined on appeal that the motion judge erred in imposing a standard of reasonable diligence that was significantly higher than what was applied in the preceding case law. Here it was found that the plaintiff acted reasonably by relying on the statement in the Motor Vehicle Report which stated that the defendant vehicle was insured. Thus, it was reasonable for the plaintiff to assume that the police officer, who completed the report, asked the driver for proof of insurance. Further, the Court found that there was no reason for the plaintiff to treat insurance coverage as a live issue until the plaintiff became aware of a potential coverage issue in 2011. Therefore, the Court found that the plaintiff brought his motion well within the limitation period. Wawanesa could not claim prejudice in having to provide uninsured vehicle coverage to the plaintiff, which is precisely what he had purchased from Wawanesa with his insurance premium and that they had been fully engaged as the plaintiff’s accident benefits provider since the accident occurred.
The Court granted the plaintiff’s appeal with costs in the amount of $9,000, all inclusive.
What the insurer should know
The limitation period for a plaintiff to make a claim on their own insurance for uninsured motorist coverage does not commence until the plaintiff becomes aware that the defendant may not have coverage. Due diligence does not lie with the plaintiff to investigate further proof of insurance of a defendant. Thus, it is reasonable for the plaintiff to rely on information provided by the police at the accident for the purposes of commencing a claim.

Article referred: http://legalknowledgeportal.com/2015/10/23/determining-limitation-periods-to-claim-insurance-from-own-insurer

Comments

Most viewed this month

Valuation Report of Jewellery once made is effective for Four Assessment Years

The division Bench of the Delhi High Court in Pr.Commissioner of Wealth Tax vs. Raghu Hari Dalmia held that a valuation report made by a registered valuer once adopted shall be in effect for four assessment years unless an event has occurred whereby the value is increased or decreased. The High Court made it clear that the event of “search” under Section 132 of the Income Tax Act, 1961 cannot compel the assessee to undertake a fresh valuation.

The recovery of vehicles by the financier not an offence - SC

Special Leave Petition (Crl.) No. 8907  of 2009 Anup Sarmah (Petitioner) Vs Bhola Nath Sharma & Ors.(Respondents) The petitioner submitted that  respondents-financer had forcibly taken away the vehicle financed by them and  illegally deprived the petitioner from its lawful possession  and  thus,  committed  a crime. The complaint filed by the petitioner had been  entertained  by  the Judicial Magistrate (Ist Class), Gauhati (Assam) in Complaint Case  No.  608 of 2009, even directing the interim custody of the vehicle (Maruti  Zen)  be given to the petitioner vide order dated  17.3.2009.  The respondent on approaching the Guwahati High  Court against this order, the hon'ble court squashed the criminal  proceedings  pending   before  the  learned Magistrate. After hearing both sides, the Hon'ble Supreme Court decided on 30th...

Mere Agreement To Sell The Leased Property To Tenant Would Not Terminate Landlord-Tenant Relationship

In CIVIL APPEAL Nos. 1237­1238 OF 2019, Dr. H.K. Sharma vs Shri Ram Lal, the tenant had objected against the eviction suit filed by the landlord, claiming that the landlord-tenant relationship between them had ceased to exist by virtue of an agreement for sale entered between them and that he has already paid some money in advance based on the agreement. The tenant contented as the landlord-tenant relationship did not exist, the landlord cannot evict him. The matter went through various forums and finally landed before the Supreme Court in appeal. The Supreme Court referring to the judgment in Shah Mathuradas Maganlal & Co. vs. Nagappa Shankarappa Malage & Ors., held that in the instant case the lease agreement included no clauses on the fate of the tenancy. A fortiori, the parties did not intend to surrender the tenancy rights despite entering into an agreement of sale of the tenanted property. In other words, if the parties really intended to surrender their tenancy ...