Uninsured and In A Car Accident: What Now?
Unlike some parts of the United States, we live in a Province where automobile insurance is mandatory. It is illegal to drive a motor vehicle in Ontario, other than on property owned by the vehicle owner, without having automobile insurance.
This means that in Ontario it is relatively rare that someone gets in a crash with a person who does not have automobile insurance. However, the fact that it is rare does not mean that you will not find yourself in a situation where you are injured by someone without automobile insurance.
In most cases, people injured by uninsured drivers will have access to other automobile insurance that will respond to the claim. Making the determination as to what other automobile insurance (if any) is available can be complicated and fact specific. It usually depends on whether you are an occupant of a car or a pedestrian, whether you have your own automobile insurance and the reason the at-fault driver is not covered by or does not have automobile insurance.
Let’s begin with what is likely the most common situation. You are driving your car, which you have insured under an Ontario automobile insurance policy. You are hit by a person driving a car without automobile insurance. In every case, you will have access to uninsured motorist coverage that is a mandatory part of your automobile insurance. It will provide payment of up to $200,000 in damages that the uninsured driver is found liable to pay. (and would have paid through his insurance if covered)
In many cases, you will also have access to something called an “OPCF 44R – Family Protection Endorsement”. This is an optional addition to your automobile insurance that provides coverage for amounts that the uninsured driver is liable to pay. Despite it being optional, virtually every automobile insurance policy has this endorsement. The typical limits of this endorsement are $1,000,000.
Let’s consider another common situation. You are riding in a car with a friend, and you are hit by an uninsured driver. Your friend has automobile insurance. You will be entitled to the same uninsured coverage (up to $200,000) under your friend’s automobile insurance as noted above (although you may have to share this insurance with your friend if he or she is hurt, or anyone else that may be hurt in the crash). If you are an insured under an automobile insurance policy (that is, you have your own automobile insurance, your spouse does, or you are a dependant of someone with an automobile policy) you may have access to the same OPCF 44R endorsement noted above – and likely have access to up to $1,000,000 that you could have collected from the uninsured driver.
If you are a pedestrian and are hit by a driver that does not have insurance, you may find that your options are somewhat restricted and the determination is more complicated. Whether you have access to underinsured coverage may depend on the reason the person that hit you has no coverage. If the person that hit you just did not bother to get an automobile policy (or perhaps had a policy that was cancelled for some reason prior to the crash) then you will not have access to the underinsured coverage as there is no policy.
If you are a pedestrian, and hit by an uninsured driver, if you have your own automobile insurance (or are covered under one as a spouse or dependant) then you will have access to the uninsured coverage under your own policy. (only if there is no uninsured coverage available from the insurer for the person that hit you) In addition, you may also have coverage under the OPCF 44 coverage – the same endorsement noted above.
If you are a pedestrian that does not own a car, does not have automobile insurance, and does not have access to automobile insurance, then you are limited to making a claim under the Motor Vehicle Accident Claims Fund. This is a provincial program that provides limited coverage (up to $200,000) for people injured by uninsured drivers, in cases where no other insurance is available.
If the person that hit you did have an automobile insurance policy, but breached one of the terms of the policy, you likely have access to up to $200,000 in liability coverage. (and no access to the uninsured coverage or the Motor Vehicle Accident Claims Fund).
There are many more situations that could impact whether you are able to access insurance coverage if you are injured by an uninsured driver. It matters how many people were injured by the insured driver. It matters whether the driver was driving with the consent of the uninsured driver. It matters what type of insurance you have. Some types of non-automobile coverage may apply. It matters where you are injured by an uninsured driver – that is, there is coverage for a crash that occurred outside of Ontario – but there are geographical limitations. It matters whether there are people that may have contributed to the loss, such as another driver of a third car or perhaps a bar for overserving the uninsured driver.
It can get even more complicated – we have not even touched on how to access statutory accident benefits – important benefits which pay for lost income, medical and rehabilitation expenses and visitor expenses. This is a subject for another time.
Determining what coverage is available to you if you are injured by an uninsured driver can be very complex. If you are hurt, you need to call an experienced personal injury lawyer. Part of the service provided is to ask the right questions, get the right answers, and determine what coverage is available to compensate you for your losses.
About the Authors
Brian Cameron joined Oatley Vigmond in 1999 after obtaining his law degree from Western University. Beginning his journey in an articling position, fresh out of law school, the first case he argued in court was a small claim’s trial for the firm’s then-senior partner, who was suing a dry cleaner who’d lost three of his dress shirts. Brian won that action for $285 plus costs, and has been with the OV team ever since. He became a partner in 2008.