Accident victims unlucky enough to be injured by an underinsured driver can still obtain compensation, says Toronto insurance lawyer Rohan Haté.

CityNews recently reported on a serious accident that resulted in the hospitalization of four people after the vehicle they were travelling in crashed in the collector lanes of the 401 in Scarborough, Ont.

According to a police report quoted in the story, the driver was not only uninsured, but should not have been driving on the highway anyway as the holder of a G1 licence, which is a learner’s permit in Ontario. G1 license holders are restricted from driving on highways and expressways to ensure their safety and the safety of other road users.

Legal recourse for parties not at-fault
Despite those issues, Haté, a lawyer with McPhadden Samac Tuovi Haté LLP, says that the injured parties may still have legal recourse against the driver in court, thanks to the concept of “absolute liability” baked into Ontario’s Insurance Act, which is designed to prevent innocent parties from losing out when harmed by a person who acted in breach of insurance rules.

“Regardless of whether you were injured by someone who is uninsured or underinsured, you can make a tort claim under the absolute liability provisions of the Act,” he says.

When it comes to motor vehicle accidents, the statutory limit for a tort claim in underinsured cases is just $200,000, but Haté explains that the amount can be boosted under an endorsement found in every Ontario auto insurance policy, known as an OPCF-44R.

In essence, OPCF-44R extends your insurance coverage to bridge the gap left by the other driver’s insufficient or nonexistent insurance. It ensures that you and your family are adequately protected and can receive compensation for medical expenses, rehabilitation costs and other damages resulting from the accident.

Claimants generally proceed by launching a claim under their own insurance policies, with their insurer stepping into the shoes of the underinsured person. The endorsement makes up the difference between the third-party liability limit of the at-fault driver and the one found in the injured party’s policy coverage.

Landmark Supreme Court cases
The endorsement was at the heart of a landmark 2002 Supreme Court case, which involved family members who were struck by an underinsured motorist. When the injured parties agreed not to pursue the driver for amounts beyond his policy limits and seek the rest through their own insurance policy, their insurer objected and refused to pay out.

However, the Supreme Court sided with the injured plaintiffs, concluding that their agreement with the underinsured driver should not have any bearing on their legal entitlement under their own policy.

Apart from the unconventional start, uninsured and underinsured claims proceed in a broadly similar way to any other personal injury tort action, according to Haté.

“There could be a little delay at the outset, in terms of the investigation that will have to happen to establish that the person at fault was not properly insured, but there is not much to distinguish them,” he says.

Complications of hit-and-runs
Things can get a little more complicated when a person is injured in a hit-and-run or other circumstances where the at-fault driver cannot be identified, since the onus is on the policyholder to prove that the accident was caused by someone else.

In such situations, it becomes crucial for the injured person to gather as much evidence as possible, such as witness statements, photos of the accident scene, or any available surveillance footage, to support their claim. It’s important to promptly report the incident to the police and notify the insurance company about the hit-and-run nature of the accident.

In either case, whether dealing with an underinsured motorist or a hit-and-run scenario, the injured person’s insurance company may go on to pursue the underinsured party for reimbursement. This allows the insurer to recover some costs incurred in compensating the injured party. However, pursuing reimbursement can be complex and time-consuming, involving legal proceedings and negotiations between insurance companies.

It is advisable to consult with a lawyer specializing in motor vehicle accidents to navigate the legal complexities and ensure the injured person’s rights are protected throughout the claims process.