The Ontario Superior Court has dismissed a motor vehicle accident claim brought by a plaintiff who was uninsured for his injuries after signing an excluded driver endorsement in the family insurance policy.
Scott Croteau, a partner at Weaver Simmons LLP in Sudbury, Ont., who acted for the defendant in Trudeau v. Cavanagh, 2019 ONSC 2485, says that, while researching the case, he was unable to find another in which an excluded driver was in an accident and sued for damages.
“There were cases that dealt with defendants having signed such an endorsement. But there were no decisions that I could locate . . . that were directly on point,” Croteau says.
In Trudeau v. Cavanagh, 2019 ONSC 2485, because of Johnathon Trudeau’s driving record, for his wife to purchase her insurance policy from Wawanesa Insurance, the couple both had to sign an OPCF 28A excluded driver endorsement, which omitted Trudeau from the automobile coverage. Trudeau nevertheless had a car accident on Aug. 7, 2013, and he gave his wife’s Wawanesa policy number to the investigating officer. Trudeau was denied accident benefits and filed a statement of claim on Oct. 3 against the other driver in the accident, David Cavanagh. Mediation was scheduled and during the defendant’s preparation they decided to amend their statement of defence to include that s. 267.6 of the Insurance Act precluded Trudeau from recovering loss or damage from bodily injury because he was uninsured at the time of the accident. The defendant moved for summary judgment to dismiss Trudeau’s action.
“I suppose it comes down to, if you're going to issue a claim in tort and go to court, you have to come with clean hands,” says personal injury lawyer Sonia Leith of Neinstein LLP in Toronto.
Trudeau’s vehicle had been purchased within days of the accident and he argued that he had signed the excluded driver endorsement 16 months beforehand, hadn’t spoken with the insurance company personally and had believed he was only prohibited from using another vehicle because the excluded endorsement did not specifically refer to the new automobile.
“Although there are situations where an honest but mistaken belief may absolve the insured, this is not one of them,” wrote Justice Robert Del Frate of the Superior Court in the decision.
Trudeau also relied on seven cases, a number of which show that those unaware they are uninsured can still obtain accident benefits. The cases cited included Kakish v. Bruce, 2004 CanLII 34439 (ON SC), in which the decision states that “it is not correct that all persons operating an uninsured vehicle are barred from commencing an action for personal injuries arising directly or indirectly from the use or operation of an automobile.” However, Del Frate said the case law cited by the plaintiff “deal with actions brought by the insured directly against the insurer” and so the Insurance Act did not apply. Trudeau was suing the person with whom he was involved in the accident.
As for the claim, the endorsement did not specifically refer to a new automobile, Del Frate called the wording “clear and unambiguous” and he said “any reasonable person” would understand its substance.
This OPCF 28A excluded driver form is used “very rarely,” says Neinstein LLP accident paralegal Sebastian Gallagher.
“The endorsement is crystal clear,” he says. “Wawanesa said they would not write this policy if the husband was not specifically excluded. To me, it's a very rare, rare case this endorsement is ever used. Her eyes should have been wide open to the exclusion.”
In Ontario, the all-comers rule means that insurers are obligated to provide a quote to any driver, requires that insurers provide a policy to anyone, but they can get around the rule by offering a high-risk driver such an expensive policy that the person goes elsewhere or by using an exclusion endorsement, Gallagher says.