Hit-and-run, am I covered?

Posted May 5, 2020
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Victims of hit-and-run accidents are covered in Ontario, with some exceptions, whether they are a pedestrian, cyclist, or a motorist pursuant to the unidentified motorist provisions found in the Insurance Act and O.A.P. Standard Automobile Policy.

Generally speaking, a victim can claim Statutory Accident Benefits (“SABs”) and pursue a tort claim to recover damages for their injuries arising out of the accident. However, the amount of coverage available for these claims depends on whether the victim is covered by an automobile insurance policy at the time of the hit-and-run.

The Ontario Insurance Act and Standard Automobile Policy refer to the hit-and-run motorist as an “unidentified driver.”

This article will cover three situations:

  1. An insured motorist/cyclist/pedestrian who is hit by an unidentified driver;
  2. An uninsured pedestrian/cyclist who is hit by an unidentified driver; and
  3. An uninsured motorist who is hit by an unidentified driver.

 

Situation 1: An insured motorist/cyclist/pedestrian hit by an unidentified driver

 
An “insured” is a person who has access to coverage under an insurance policy. For example, a person who is not a named insured on a motor vehicle policy but has access to coverage under a policy issued to a spouse or parent would still be considered “insured.”

Every insured person has the right to claim SABs under their own automobile policy regardless of who is at fault for the accident. An insured hit-and-run victim would apply to their own automobile insurer for SABs after a hit-and-run accident.

The standard level of benefits in an automobile policy can be found on the SAB schedule HERE. Benefit limits may be higher if the victim purchased optional coverage increasing these limits.

If the need to make a tort claim arises, an action can be started against the victim’s own automobile insurer pursuant to sections 265(1) and 251(1) of the Insurance Act. Pursuant to these provisions, an Ontario automobile insurer is required to pay up to $200,000 in damages where the injuries were caused by an at-fault unidentified driver.

There is additional coverage available to respond to this claim under the OPCF-44R Endorsement attached to the Ontario Standard Automobile Policy. This endorsement will respond to claims caused by an unidentified driver over and above the $200,000 set out in s. 265(1) and 251(1) up to the amount of third party bodily injury limits set out in the policy. Coverage under the OPCF-44R Endorsement extends to the named insured and, in certain circumstances, dependent relatives, spouses, or same-sex partners.

In order to succeed in a claim under the OPCF-44R Endorsement, the injured person must have “other material evidence” available to support the allegation that their injuries were caused by an unidentified driver. Other material evidence includes independent witness evidence from anyone other than the victim’s spouse or dependent witness.
 

Situation 2: An uninsured pedestrian/cyclist who is hit by an unidentified driver

 
If an uninsured pedestrian or cyclist is hit by an unidentified driver, the Motor Vehicle Accident Claims Fund (“MVACF”) will respond to both the SABs and tort claim.

A hit-and-run victim should apply to the MVACF for SABs after the accident. If the need to make a tort claim arises, the hit-and-run victim should sue the MVACF as a defendant.

It is important to note that the MVACF will not pay more than the $200,000 minimum coverage limits for automobile insurance in Ontario in a hit-and-run situation.
 

Situation 3: An uninsured motorist who is hit by an unidentified driver

 
If you are driving an uninsured vehicle and you are struck by a hit and run driver, your entitlement to claim SABs benefits will be limited to medical, rehabilitation, and attendant care. You are specifically excluded from claiming an income replacement benefit, childcare, or housekeeping benefit.

Further, pursuant to section 267.6 of the Insurance Act you are prohibited from bringing a tort action against the hit and run driver.

If you are injured in a hit and run accident, you will have access to SABs whether through your own automobile policy, the policy insuring your vehicle, or the Motor Vehicle Accident Claims Fund. Whether or not you will be able to advance a claim in tort and recover in excess of the Ontario minimum policy limits will depend on the circumstances giving rise to the accident.

Other Considerations

The law in this article is current for motor vehicle accidents which occur after July 1, 2019. For accidents occurring before that date, older law may apply.


Adam Karakolis is a lawyer at Thomson Rogers. Adam can be reached at 416-868-3181 or by EMAIL.


[1] Insurance Act, RSO 1990, c I.8, s. 265(2) [Insurance Act]; O.A.P. 1 Ontario Automobile Policy [On or after July 1, 2019], s. 5.1.3 [O.A.P. 1].

[2] Ibid.

[3] Insurance Act, supra note 1 at ss. 265(1) & 251(1).

[4] Uninsured Automobile Coverage, RRO 1990, Reg 676, s. 2(1)(a); O.A.P. 1, supra note 1 at s. 5.7.1.

[5] The victim may also be covered by other insurance policies which they own. For example, a Personal Liability Umbrella Policy can provide additional coverage. Learn about these policies here: https://www.thomsonrogers.com/wp-content/uploads/2019/12/What-In-The-World-Is-A-PLUP-Presentation.pdf

[6] OPCF 44R Family Protection Endorsement, s. 1.5(C) [OPCF 44R].

[7] OPCF 44R, supra note 6 at s. 1.5(D).

[8] Motor Vehicle Accident Claims Act, RSO 1990, c M.41, s. 4(1) [MVACA]; Ahmadi v John Doe, 2015 ONSC 3288, at para. 6 [Ahmadi].

[9] MVACA, supra note 8 at s. 6(1).

[10] Ahmadi, supra note 8 at para. 6.

[11] MVACA, supra note 8 at s. 23(1).

[2] Insurance Act, supra note 1 at ss. 267.6.