Filing an OPA and OPCF 44R claim for Unidentified Driver Coverage

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Car accidents are a daily occurrence in many Ontario communities.

Although many collisions involve more than one vehicle, single-vehicle accidents are also very common and often result when a driver loses control of their vehicle. This can result from any number of factors, such as the unexpected appearance of an animal or pedestrian on the road; poor weather conditions including icy roads or snow storms; and erratic or unlawful driving actions taken by another motorist. " 

When a single-vehicle collision is caused by another motorist's actions, the innocent victim has the added frustration and challenge of filing a claim although the identity of the other driver is unknown. In many instances, an 'at fault' driver does not stop and identify themselves and it is difficult, if not impossible, for an accident victim to get a good look at another driver's license plate and/or make of car when they are in the midst of an accident.

Fortunately for Ontario residents, there are motor vehicle coverages available to provide accident victims with compensation when the identity of the negligent/at-fault driver is unknown. This includes the standard Ontario Automobile Policy (OAP) and the Family Protection Coverage Endorsement OPCF 44R (OPCF 44R).

Every vehicle insurance policy provides basic (OAP) coverage for accident victims under their own policy, regardless who was at fault in causing the collision. OPCF 44R coverage is optional coverage that a motor vehicle owner may purchase to augment their standard insurance policy coverage.

Both OAP and OPCF 44R have specific requirements that must be met when making a claim for unidentified driver coverage, to satisfy the insurer and allow a claimant to receive full compensation for their loss.

To receive OAP benefits, the claimant is obligated to prove "on a balance of probabilities that the accident was caused by an unidentified driver"; and to receive OPCF 44R benefits, the claimant must corroborate their evidence with "other material evidence". This other material evidence may include independent witness testimony and/or physical evidence indicating the involvement of another vehicle.

A failure, in the insurer's opinion, to meet these standards could result in a denial of these benefits, which was grounds for the 2015 tort action," Paolucci v. John Doe et al.

Case example

In the early morning hours of July 31, 2012, claimant/plaintiff Kathryn Paolucci was involved in a single-vehicle collision, after she swerved to avoid a possible collision with another car and then crashed into a utility pole.

Ms. Paolucci alleged that as she was driving, she saw the headlights of an oncoming vehicle as it crossed onto her lane, forcing her to swerve to avoid a collision. The plaintiff's car caught fire when she hit a utility pole and as a result, she sustained physical and psychological injuries.

Ms. Paolucci made a claim with her insurer, Economical Mutual Insurance Company, to the $800,000 coverage under the OPCF 44R and the $200,000 coverage under the OAP. Economical denied Ms. Paolucci's claim on the basis that she did not provide any legitimate evidence to support her claim of an unidentified motorist causing the accident. In Paolucci v. John Doe et al., Economical sought summary judgement to dismiss Ms. Paolucci's claim for coverage in its entirety.

The two key issues the judge had to decide was whether or not a genuine issue exists requiring a trial in relation to: the plaintiff's claim for the $800,000 OPCF 44R coverage; and the plaintiff's claim for the $200,000 OAP coverage.

Justice Quinlan first addressed the legal guidelines for a summary motion, by referencing Hryniak v. Mauldin, where the Supreme Court of Canada provided a number of principles to give direction to the courts.

  • Summary motion may be granted if all the evidence provided during the summary judgement process is the exact evidence that would be presented in a trial.

  • If the evidence provided during the summary judgement process proves sufficient enough to allow the judge to make a fair and just decision in a timely, affordable and proportionate manner, then the motion should be granted.

With respect to the OPCF 44R coverage, the defendant, Economical, argued that Ms. Paolucci provided no corroborating evidence to support the "other material evidence" requirement necessary for meeting the evidentiary threshold of an OPCF 44R claim.

Ms. Paolucci challenged Economical's position by arguing that whether or not an unidentified vehicle existed was a question for a trial.

She also submitted the following arguments as proof of the existence of an unidentified vehicle:

  • The Ambulance Call Report, which recorded that the plaintiff informed the ambulance attendants that she swerved to avoid a vehicle.

  • The plaintiff told hospital personnel that she "avoided something and hit a pole".

  • The accident report, in which the police officer noted that Ms. Paolucci's condition was normal, that it was dark and that there was an unknown vehicle on the road that Ms. Paolucci swerved to avoid.

Justice Quinlan agreed with Economical that a summary judgement motion would be sufficient to decide whether the claimant met the evidentiary threshold to qualify for OPCF 44R coverage .

The judge rejected Ms. Paolucci's evidence, noting that the statements to both the ambulance and hospital personnel were merely a repetition of the statements made by Ms. Paolucci and therefore did not count as independent witness evidence. There was also no evidence provided to support the police officer's notation regarding the existence of an unknown vehicle, in his police report. With regards to physical evidence, the judge noted that there were no signs of braking or tire marks, which would suggest either the swerving to avoid another vehicle or the presence of another vehicle.

With regard to the OAP claim, although corroborative evidence is not required as in the case of an OPCF 44R claim, the claimant's testimony must be convincing and satisfy the court that an unidentified vehicle was actually involved. Economical argued that it was more likely that the accident occurred because Ms. Paolucci was tired, inattentive and/or self-destructive.

Economical also submitted the following arguments as proof that Ms. Paolucci's testimony was neither credible nor reliable: there was a delay in reporting the incident; Ms. Paolucci had pre-existing mental health issues; reference to lights actually did not support the presence of a vehicle; and the circumstances of the accident were, in general, suspicious.

Ms. Paolucci countered that her medical history was irrelevant and not indicative of her mental state at the time of the accident. Upon review of the evidence, Justice Quinlan sided with Ms. Paolucci on the matter of the OAP claim and denied Economical's request for summary judgement.

The judge disagreed with Economical that Ms. Paolucci's reference to headlights as well as her delay in mentioning the other vehicle to the officer until after she had received emergency medical treatment, undermined her credibility or reliability. The judge noted that it was difficult to properly weigh the effect of any pre-existing mental health issues on paper and without full consideration. 

Justice Quinlan ultimately concluded that on the matter of the OAP claim, she did not believe she had enough evidence to make the necessary findings of fact and therefore denied Economical's request for summary judgement to dismiss the OAP claim. However, Economical was granted partial summary judgement with respect to a dismissal of the OPCF 44R claim.

The majority of personal injury claims and insurance disputes can be successfully resolved by negotiation and without having to go to trial. Unfortunately, the greater difficulty in proving the liability of an unknown driver, particularly in the case of a single-vehicle collision, provides an opening for insurance companies to dispute a claim.

Under any circumstances where your claim is denied or undervalued, call Gluckstein Lawyers to assess the facts of your case and provide you with expert legal advice and representation to obtain favourable resolution of your claim.


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