In Schmitz v. Lombard Ins. Co. McMillan’s SCC Group was successful in assisting its client having our highest court refuse leave to appeal the Ontario Court’s decision on a very important limitation period issue— if you are in a car accident and you find out the wrongdoer’s auto insurance coverage is insufficient to cover the victim’s claim, when is the last date you can sue your own insurer for the difference in coverage under the “OPCF 44R” additional coverage? Does the limitation period begin to run to claim against your own insurance company begin at the time of the accident, or when the victim becomes aware that the wrongdoer is underinsured and they will need to resort to their underinsured coverage?
As a result of a July 19, 2006 motor vehicle accident, Schmitz and his family commenced a lawsuit against Mr. Bakonyi in June 2007 for damages in excess of $1,000,000.00. In June 2010, Schmitz found out that Mr. Bakonyi’s automobile insurance coverage was limited to $1,000,000. Schmitz then claimed against his own insurer, Lombard, for indemnity under the OPCF 44R for any amounts found owing to them that were in excess of Bakonyi’s $1 million coverage. Schmitz’s insurer, Lombard, refused, saying that claims under OPCF 44R had to be asserted within a year of the accident. The lower court stated that (1) the statutory limitation period of 2 years superseded the one year limitation period in the policy, and (2) the limitation period started when Schmitz asked for coverage under the OPCF 44R endorsement, so the limitation period started in 2010, and not 2006. The Ontario Court of Appeal dismissed the appeal, subject to a minor amendment to the motion judge’s order. With the help of McMillan’s SCC Group, the Supreme Court of Canada refused to hear any further appeal, thus firmly establishing the limitation period in Ontario may start several years after the accident itself.
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