Limitation Periods in Actions Under the OPCF

Roque v. Pilot Insurance Company, 2012 ONCA 311 (C.A.)

The plaintiff was injured in an automobile accident in 1996. He commenced an action against the defendant driver in 1998 for $1.75 million.  He commenced an action against his own insurer in 2002.   Section 17 of the OPCF provides an.action against one's own insurer under the underinsured provisions of the policy must be commenced within one year from when the claimant knew or ought to have known the quantum of claims exceeds the defendant's motor vehicle liability limits. The plaintiff argued the limitation did not begin to run until his damages were quantified by settlement or judgment.  This interpretation had previously been accepted in Hampton v. Traders General Insurance Company (1996), 27 O.R. (3d) 285 (Gen. Div).  On the insurer's motion for summary judgment, the motion judge dismissed the action.  The Court of Appeal dismissed the appeal, overruling Hampton.  Justice Juriansz preferred the reasoning of Master Dash in McCook v. Subramaniam (2008), 172 A.C.W.S. (3d) 344 (S.C.) at para. 5:

The plaintiff’s case runs from when he has a body of evidence accumulated that would give him a “reasonable chance” of persuading a judge that his claims would exceed $200,000.

Roque had a DAC, medical reports and an economic loss report going back to 1998 and more than two years passed after he knew or ought to have known his claims exceeded $200,000. As a result, the action was statute barred. 

The Court did not accept the plaintiff`s submission that applying s. 17 would amount to a multiplicity of proceedings, since s. 258.4 of the Insurance Act requires an insurer to advise of the defendant`s policy limits.  Where an insurer fails to comply, the Court stated it would be prudent for a plaintiff to commence an action against its own insurer.

This decision should help to provide greater certainty with respect to the timing for claims under the underinsured provisions of the motor vehicle policy. 

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