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