The Court of Appeal affirmed a Rule 21 determination on insurance priority. After the at-fault driver’s $300,000 automobile liability limits were exhausted, the plaintiff’s OPCF 44R responded next up to $700,000, with the defendant’s personal liability umbrella policy (PLUP) responding only thereafter. The court accepted that policy-interpretation issues were questions of law reviewed for correctness and saw no basis to interfere.
Interpreting s. 7 of the OPCF 44R within Ontario’s regulated automobile insurance scheme, the court held that “insurers of the inadequately insured motorist” referred to motor vehicle liability insurers and instruments in lieu of such insurance, not to a PLUP. The court concluded it would be incoherent to cap the OPCF 44R by reference to “motor vehicle liability insurance” while also ranking it behind non-automobile coverages.
The court also upheld the motions judge’s conclusions that the OPCF 44R insurer could not deduct the PLUP limits in calculating what it owed, could not subrogate against the at-fault defendants for amounts paid under the OPCF 44R, and could not issue a third-party claim against the PLUP insurer.
