There Once Were Two Spouses, In Two Different Houses

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

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,

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(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 resulting from an accident involving an automobile.

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Subsection 265 (2) defines "person insured under the contract" as follows:

265(2) For the purposes of this section,

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"person insured under the contract" means

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(c) in respect of a claim for bodily injuries or death,

(i) any person while an occupant of the insured automobile,

(ii) the insured and his or her spouse and any dependent relative of either,

(A) while an occupant of an uninsured automobile, or

(B) while not the occupant of an automobile or of railway rolling stock that runs on rails, who is struck by an uninsured or unidentified automobile,

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The OPCF44R defines "insured person" as follows:

1.6 "insured person" means

(a) the named insured and his or her spouse and any dependent relative of the name insured and his or her spouse, while

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(iii) not an occupant of an automobile who is struck by an automobile.

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Section 265(1) of the Insurance Act contains the following definition of "spouse":

"spouse" means either of two persons who,

(a) are married to each other,

(b) have together entered into a marriage that is voidable or void, in good faith on the...