There Once Were Two Spouses, In Two Different Houses

• Published date: 04 May 2023
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Tax, Family and Matrimonial, Technology, Contracts and Commercial Law, Family Law, Personal Injury, National Insurance, Security
• Law Firm: Strigberger Brown Armstrong LLP
• Author: Ms Sonya Reid
• topic: Family Law,Insurance Law,Civil Procedure

The Plaintiffs, Yvonne Moelker, the Estate of Lawrence "Larry" Hamel, and Lawrence Hamel's siblings, Paul, and Louis Hamel, brought an action against the driver and owner of an unidentified vehicle, Security National Insurance Company, and the Motor Vehicle Accident Claims Fund. The action arose out of a September 2019 accident in which Lawrence, a pedestrian, was struck by an unidentified vehicle, and died of his injuries one month later.

At the time of the loss, Yvonne was covered under a Security National automobile insurance policy, which included the OPCF44R Family Protection Endorsement ("OPCF44R"). Yvonne, Larry's Estate, and his siblings made a claim with Security National for unidentified vehicle coverage, under s. 265 of the Insurance Act, and the OPCF44R. Security National denied the claim and brought a summary judgment motion arguing that neither Yvonne nor Larry was a "person insured under the contract", because they were not "spouses."

Subsection 265 (1)(b) of the Insurance Act provides that:

265 (1) Every contract evidenced by a motor vehicle liability policy shall provide for payment of all sums that,

...

(b) any person is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injury to or the death of a person insured under the contract...