Testimony of an insured’s girlfriend is sufficient to entitle a driver to coverage for damage from an unidentified driver in Ontario.

Evidence of insured’s girlfriend sufficient to corroborate insured’s evidence of the involvement of an unidentified driver in a motor vehicle accident such that he was entitled to coverage under the Family Protection Endorsement OPCF 44R.

Pepe v. State Farm Mutual Automobile Insurance Co., [2011] O.J. No. 2011, May 3, 2011, Ontario Court of Appeal, D.H. Doherty, M.J. Moldaver and K.N. Feldman JJ.A.

The Ontario Court of Appeal addressed the narrow issue of whether the insured was entitled to coverage pursuant to the terms of the Family Protection Endorsement OPCF 44R which provided $800,000 coverage to an insured involved in a motor vehicle accident involving an unidentified driver.

Coverage under this endorsement is only available if the evidence of an eligible claimant (the insured) is corroborrated by “other material evidence”. “Other material evidence” is defined to include 1) independent witness evidence, other than evidence of a spouse…or a dependent relative…; or 2) physical evidence indicating the invovlement of an unidentified automobile. In this case, the “other material evidence” was that of the insured’s passenger, his girlfriend at the time. The Court of Appeal found that her evidence of the involvement of an unidentified driver amounted to other material evidence and the appeal was dismissed.

This case was digested by Cameron B. Elder and edited by David W. Pilley of Harper Grey LLP.

To stay current with the new case law and emerging legal issues in this area, subscribe here.