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Case Summary: Ostrowercha v. Co­-Operators General Insurance Company
Defence + Indemnity Newsletter

Pedestrian struck by unidentified motorist not covered by her own SEF 44 Endorsement.    

Ostrowercha v. Co-­Operators General Insurance Company, 2015 ABQB 636 [4150]   

I. FACTS AND ISSUES   

The Defendant, Co­-Operators, issued a standard automobile policy to the Plaintiff, which had an attached S.E.F. #44 Endorsement with a limit of $1 million. 

The Plaintiff went to a campsite, which she walked beyond the perimeter of in order to make a phone call to her boyfriend. She passed between two vehicles parked in an area used for temporary parking, and as she emerged from between them she was struck by a vehicle that ran her over and left without stopping, resulting in her suffering horrendous injuries. The driver and owner of the vehicle were never identified.

The Defendant brought an application for summary trial to dismiss the Plaintiff’s claim against them on the basis that there is no coverage available under the S.E.F. #44 Endorsement.

The S.E.F. #44 Endorsement read as follows:

In consideration of the premium charged and subject to the provisions hereof, it is understood and agreed that the Insurer shall indemnify each eligible claimant for the amount that such eligible claimant is legally entitled to recover from an inadequately insured motorist as compensatory damages in respect of bodily injury or death sustained by the insured person by accident arising out of the use or operation of an automobile.

II. HELD: Application Granted, Plaintiff is not covered by SEF 44

1. The Court found no ambiguities in the policy

(a) “Inadequately insured motorist” was defined as either an identified owner/driver whose insurance is less than the Coverage; or the driver/owner is in an uninsured or unidentified automobile within the definition of “Uninsured Automobile Coverage” in the policy.

(i) “Unidentified automobile” is defined as an “automobile which causes bodily injury or death to an insured person arising out of the physical contact of such automobile with the automobile of which the insured person is an occupant at the time of the accident” provided the identity of either the owner or driver of the automobile cannot be ascertained.

(ii) “Occupant” is defined as “a person driving, being carried in or upon or entering or getting onto to [sic] alighting from an automobile.”

2. Based on the definitions above, it was held that the Plaintiff did not fall within coverage.

(a) If the driver were known, but underor uninsured, she would be covered.

(b) Because the driver was not known, the Plaintiff must have been an occupant of the motor vehicle.

III. COMMENTARY: The Court, while sympathetic to the Plaintiff’s plight, found that this result was necessary, as there must be a link to the insured vehicle, otherwise the policy could extend to any form of injury suffered involving any motor vehicle regardless of the circumstances. If that was the case, SEF 44 endorsements would be general accident/injury insurance, which they are not. 

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