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Fridays With Rogers Partners

At this morning’s muffin meeting, Micah Pirk O’Connell discussed a Court of Appeal decision involving underinsured coverage for an automobile accident.

In Murphy v. Savoie, 2019 ONCA 784, Aviva provided automobile insurance to Emblem Flowers. The policy included an OPCF 44R endorsement.

Emblem Flowers employed Colm Hogan as a delivery van driver. Mr. Hogan’s spouse, Esmeralda Murphy, was struck by an uninsured driver.

Mr. Murphy and Mr. Hogan sought underinsured coverage from Aviva. The relevant portion of the OPCF 44R endorsement in this case was that, if the named insured is a corporation, any employee for whose regular use the described automobile is provided and his or her spouse is covered under the endorsement.

However, the endorsement also provides that the definitions of “insured person” apply as of the time of the happening of an accident.

The accident in question occurred just prior to when Mr. Hogan arrived at work. As a result, Aviva argued that Mr. Hogan did not have regular use of the described automobile at the time of the accident, such that no underinsured coverage was available.

The motion judge disagreed. This was upheld by the Court of Appeal.

The Court of Appeal noted that the purpose of the OPCF 44R endorsement is to extend coverage to insureds.

The Court of Appeal held that Mr. Hogan did not have to be on duty at the very moment of the accident in order for Ms. Murphy to be covered under the OPCF 44R endorsement.

Ankita Abraham addressed an interesting decision involving the doctrine of misnomer.

In McNeil v. van Gulik, 2019 ONSC 5816, the plaintiff sustained a crush injury to her left hand. She had surgery in December 2012. The anesthesiologist during the surgery was Dr. Habibi.

The next day, a different anesthesiologist, Dr. van Gulik, administered a nerve block and discharged the plaintiff. The following day, the plaintiff had severe problems with her left arm and was diagnosed with compartment syndrome. She underwent emergency surgery.

In November 2014, the plaintiff sued several parties, but not Dr. van Gulik. In December 2015, she commenced a separate action against Dr. van Gulik. Dr. van Gulik took the position that the plaintiff missed the limitation period.

The plaintiff argued that Dr. van Gulik should be substituted into the first action on the basis of misnomer. She said that she incorrectly named Dr. Habibi in the initial claim, instead of Dr. van Gulik. Justice Petersen ruled in Dr. van Gulik’s favour and held that this was not a case of misnomer.

Justice Petersen noted that the particulars of the alleged negligence of Dr. Habibi in the initial claim made no mention of the nerve block administered. If the plaintiff really had intended to name Dr. van Gulik, one would have expected to see references to the nerve block and to Dr. van Gulik discharging the plaintiff following the nerve block. The second statement of claim contained specific references to the nerve block.

As a result, plaintiff’s misnomer motion was dismissed. Moreover, Dr. van Gulik was grated summary judgment dismissing the action as against him because the plaintiff missed the limitation period.