Making a Claim for Uninsured Driver Coverage

Under Ontario’s Insurance Act, all drivers must carry vehicle insurance which includes, at a minimum, the following four types of coverage:

• Third Party Liability 
• Statutory Accident Benefits
• Uninsured Automobile coverage
• Direct Compensation-Property Damage 

Many vehicle owners also choose to purchase additional insurance coverage beyond the minimum mandatory coverage, such as collision insurance which will pay for damage to their own vehicle resulting from an accident.

Although all drivers require vehicle insurance in Ontario, unfortunately, there are in excess of 100,000 drivers who choose to break the law every year on Ontario roads by driving while uninsured.  There are various reasons why a driver might be uninsured -- among the most common are: the driver lost their licence due to a driving violation and chooses to drive regardless; or the driver wants to avoid paying for insurance, perhaps because their insurance rates are very high due to previous driving violations.  Regardless of the reason why a negligent driver was uninsured or left the scene of the accident, accident victims who sustain injuries or damage to their property as a result of the collision deserve to be compensated for those losses.

If you were injured by a negligent driver who has no insurance (including someone driving a car without the owner’s permission or one that is stolen), with a ‘basic’ insurance plan, you have two main options for gaining compensation: statutory accident benefits; and uninsured automobile coverage.  In both cases, the claim for compensation must be made against your own vehicle insurance policy.

Anyone injured in a motor vehicle accident may claim statutory accident benefits (or ‘no fault’ accident benefits) against their own vehicle insurance policy, or in the case of a passenger, against the policy of the driver. Statutory accident benefits are available to insured claimants regardless whether they were at fault for the accident, and whether or not the driver who caused the collision is uninsured.  The maximum amount of statutory accident benefits to which you are entitled depends on whether your injuries are assessed as minor, non-catastrophic or catastrophic.  Depending on your level of injury, you may be able to claim medical and rehabilitation expenses (including attendant care), income replacement benefits, death and funeral expenses, caregiver benefit and non-earner benefit.

The purpose of uninsured automobile coverage is to provide protection for accident victims who were injured in an accident caused by a negligent driver who is uninsured or unknown (i.e., a hit-and-run driver), or when the at-fault driver’s insurance is inadequate to cover losses resulting from their injury.  Uninsured automobile coverage is meant to replace injury damages an accident victim might otherwise be able to claim against a known and insured negligent driver.  Some of the injury damages you may claim are: medical and rehabilitation treatments, lost income, property damage, and pain and suffering damages. 

Currently, Ontario vehicle insurance policies must include $200,000 in uninsured vehicle coverage.  If several occupants of the vehicle were injured in the accident, your uninsured vehicle coverage must be split between all eligible accident victims. 

Vehicle owners can increase their uninsured vehicle coverage to as much as $2 Million by adding Family Protection coverage (or OPCF-44R) to their insurance policy.  This coverage is optional and provides protection to you, your spouse and dependant relatives if you or family members are hurt in a collision caused by an uninsured, unidentified or underinsured driver.  For such accidents, the OPCF-44R gives you access to your own policy’s maximum liability amount so, if you have $1 or $2 Million in third-party liability, you could seek up to this amount in damages in the case of a serious injury.  

Severe or catastrophic injuries can easily result in far more than $200,000 in expenses over an accident victim’s recovery period or lifetime, so having access to $1 Million or more in coverage in the event of an uninsured accident can be crucial to the accident victim’s quality of life.   

Not everyone who is injured in an uninsured driver collision owns a vehicle or is covered by a vehicle insurance policy.  Ontario’s fund of last resort, the Motor Vehicle Accident Claims Fund (MVACF), exists to provide injury compensation for victims of an automobile accident who have no access to insurance. MVACF is often the only compensation option available to an adult pedestrian or cyclist who doesn’t own a car and was hurt by an unknown or uninsured driver.  Through MVACF, an eligible person may claim statutory accident benefits (the same as an insured claimant) and/or may file a lawsuit for up to $200,000 in damages (similar to damages available through uninsured automobile coverage).

When the at-fault driver is under-insured

If your accident was caused by an under-insured driver who has inadequate insurance on their own policy to cover the damages awarded in your injury lawsuit, your own insurance policy may be able to make up the difference.   For example, if you are awarded $800,000 in damages and the defendant driver has only $200,000 in liability coverage, if your vehicle insurance policy includes $1 Million in OPCF-44R family protection coverage, your policy can compensate for the $600,000 shortfall in damages owed to you ($800,000 - $200,000).

In some states, vehicle insurance is not mandatory at all; while other states and some provinces require a much lower amount of automobile coverage than Ontario.  If your accident was caused by an underinsured driver from a jurisdiction with lower liability requirements, the $200,000 in vehicle insurance coverage on your own policy (or higher maximum coverage if you have OPCF-44R protection) can be used to compensate for the outstanding amount not covered by the at-fault driver’s insurance   This means, if you are eligible for $150,000 in injury damages, but the negligent driver only has $50,000 in insurance coverage, your own uninsured vehicle coverage can pay the outstanding $100,000 owed to you.

What to do after an uninsured driver collision

• In any accident, regardless of the circumstances, your first priority should be to call an ambulance if anyone is seriously injured.
• Call the police.  Driving without insurance is against the law in Ontario so police should be called if you’re involved in a collision with an uninsured driver. At a minimum, report the accident to a Collision Reporting Centre within 24 hours – failing to do so can result in a charge for leaving the scene of an accident.  Ontario law also requires calling police to the scene if someone was injured in the collision or if the combined damage to the vehicles appears to be $2000 or more. 
• If the uninsured driver remained at the scene, exchange information with them, just as you would with an insured driver who was involved in your accident.
• If there is any chance at all that someone in your vehicle was hurt in the accident, the person should be assessed at the hospital or in a visit to their family doctor.  An early diagnosis can reduce the risk of a seemingly minor injury becoming much more serious.
• Report the accident to your insurance company - the requirement is to inform them within 7 days unless there are extenuating circumstances.  Be prepared to provide your insurer with information to identify the drivers and vehicles involved in the accident; who was injured and the extent of their injuries; and when and where the accident occurred.  Your insurer will require you to make a written report within 30 days, stating your intention to make an uninsured driver claim or accident benefits claim.  You will be expected to include the police report at this time, and your insurer may also require you to submit your vehicle for an inspection prior to processing your claim.

Because uninsured driver claims must be made against the claimant’s own vehicle insurance company, the burden of proof is on the claimant to provide evidence demonstrating that an uninsured vehicle caused the accident. The police report, and observations made by police and witnesses at the scene of the accident, are key evidence in these incidents which is why it’s particularly important to call police if your collision was caused by an uninsured or unidentified driver.  When you promptly report a hit-and-run accident, in particular, you may improve the probability that police will ascertain the identity of the negligent driver, through interviewing witnesses and so on, and this will improve your chances of making a successful injury claim.

If the insurance company has denied your accident claim, whether the claim arises from an uninsured driver incident or another type of accident, speak to a highly experienced car accident lawyer at Dietrich Law and let us help you get the compensation you are owed.