Category: OPCF44

On summary judgment about competing OPCF 44R endorsements, the Court held that the plaintiff qualified under his employer’s Allstate policy but not under his father’s TD motorcycle policy. Section 22 makes the 44R a change form with priority where it provides otherwise, and section 1.6(b) effectively defines “other automobile” and limits exclusions to vehicles owned or leased by the named insured, not to regular or frequent use. That ousted OAP 1 Special Condition 6.

Reading Kahlon and Hesch together, the court found that the plaintiff satisfied Allstate’s 1.6(b) definition of “insured person,” so Allstate’s 44R responded. Under the TD policy, the plaintiff did not meet 1.6(a)’s “insured person” definition once the proviso regarding coverage under another 44R was applied. Ultimately, only Allstate owed 44R benefits, and TD was entitled to reimbursement of the settlement it had paid.

The plaintiff was severely injured in a motor vehicle accident after he and the driver of his vehicle were overserved at a wedding. The trial judge originally concluded that the OPCF-44 defendant, State Farm, was required to pay $800,000.00 (being the $1 million auto insurance limit less the $200,000.00 available from the driver). The Court of Appeal reversed that aspect of the decision and held that the OPCF-44’s exposure could take into account the available insurance from the bartender, even though the bartender was a third party to the action, having been sued by State Farm, rather than the plaintiff. The Court of Appeal also rejected the trial judge’s conclusion that the bartender was severally liable only to the wedding host. The Court explained that while State Farm had no independent right to claim against the bartender (and therefore could not claim contribution and indemnity under s.1 of the Negligence Act), it did have a right of subrogation under the terms of the OPCF-44 and s. 278 of the Insurance Act. In essence, State Farm “stepped into the shoes” of the plaintiff to claim against the bartender, making his policy available and to be deducted from the net exposure to State Farm.