





CITATION:
Van Bastelaar v. Bentley, 2011 ONCA 660



DATE: 20111021



DOCKET: C53633



COURT OF APPEAL FOR ONTARIO



MacPherson, LaForme and Epstein JJ.A.



BETWEEN



Jeremey Van Bastelaar and Kirsty Van Bastelaar



Plaintiffs (Appellants)



and



Randall
          Mark Bentley, Sonya Mardina Bentley, Kevin

Van Bastelaar,
          Charlene Toth and TD Home and Auto

Insurance
          Company a.k.a. Primmum Insurance



Defendants (Respondents)



Mary-Anne C. Strong, for the appellants



William G. Woodward, for the respondents



Heard:
October 18, 2011



On appeal from the order of Justice John F. McGarry of the
          Superior Court of Justice dated March 29, 2011.



ENDORSEMENT




[1]

The appellants Jeremey and Kristy Van Bastelaar appeal from the order of
    McGarry J. of the Superior Court of Justice dated 29 March 2011 granting
    summary judgment in favour of the respondent TD home and Auto Insurance Company
    a.k.a. Primmum Insurance (Primmum).

[2]

The appellants hold an insurance policy from the respondent.  The policy
    includes underinsured coverage defined by the OPCF 44R Family Protection
    Endorsement.  This endorsement provides that where an inadequately insured
    motorist injures the policyholder in a car accident, the issuer will indemnify
    the policyholder for certain damages beyond the injuring motorists insurance
    coverage.  For the purposes of the endorsement, inadequately insured motorist
    is defined as a motorist whose motor vehicle liability insurance is less than
    the injured partys OPCF 44R family protection coverage amount.

[3]

The Van Bastelaars insurance policy has a family protection coverage
    amount of $1 million.  The defendant Bentleys insurance policy limit is $1
    million.

[4]

The Van Bastelarrs, both of whom were seriously injured, are concerned
    that Bentleys $1 million coverage will be apportioned among four injured
    parties.  Hence they joined Primmum as a defendant with a view to accessing
    their OPCF 44R coverage to make up any difference between what they might
    obtain from Bentley and $1 million.

[5]

The crucial provision to be interpreted is paragraph 4 of the OPCF 44R
    endorsement:

The insurers maximum liability under this change
    form, regardless of the number of eligible claimants or insured persons injured
    or killed or the number of automobiles insured under the Policy, is the amount
    by which the limit of family protection coverage exceeds the total of all
    limits of motor vehicle liability insurance, or bonds, or cash deposits, or
    other financial guarantees as required by law in lieu of such insurance, of the
    inadequately insured motorist and of any person any person jointly liable with
    that motorist.

[6]

The motion judge stated that the definition of inadequately insured
    motorist and paragraph 4 of the OPCF 44R endorsement provided a clear answer:
    An underinsurers obligation to pay does not arise until the total amount of
    insurance held by the tortfeasor at the moment of the accident is less than the
    family protection coverage liability limit.  He concluded that since the
    policies of the parties are evenly matched, so therefore, the underinsurer had
    no exposure to liability.

[7]

The appellants contend that their insurance policy is ambiguous and
    should be interpreted
contra proferentem
the respondent insurer to
    permit access to the underinsurance coverage if the injuring partys insurance
    may be apportioned among several plaintiffs, thereby creating a potential
    shortfall (i.e. less than $1 million) for the appellants.

[8]

We do not accept this submission.  The motion judge relied on this
    courts decision in
Romas v. Prudential Insurance Co. of Canada
, [1996]
    O.J. No. 4185 (Romas), which is explicitly on point, especially at paras.
    2-4.

[9]

The Van Bastelaars submit that the decision of the Supreme Court of
    Canada in
Somersall v. Friedman
2002 SCC 59 has overtaken this courts
    decision in
Romas
.  That is, the reality of the situation is what must
    be considered; not simply that the endorsement is only applied when the
    plaintiffs policy limits exceed that of the injuring drivers insurance
    limits.

[10]

We disagree.  The principal issue in
Somersall
related to whether
    an agreement between the plaintiffs and the injuring driver to limit their
    claims to the available policy limits prevented them from advancing a claim
    against their own insurer for coverage provided by the SEF 44.  It was not
    about whether the injuring driver had adequate policy limits which were equal
    to those provided by the SEF 44.  That is not this case.

[11]

The appeal is dismissed.  The respondent is entitled to its costs of the
    appeal fixed at $7000, inclusive of disbursements and HST.

J.C. MacPherson
    J.A.

H.S. LaForme
    J.A.

G.J. Epstein
    J.A.


