Chomos v. Economical Mutual Insurance Co., (2002) 162 O.A.C. 171 (CA)

• Judge: Catzman, Sharpe and Cronk, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 25, 2002
• Jurisdiction: Ontario
• Citations: (2002), 162 O.A.C. 171 (CA)

Chomos v. Economical Mutual (2002), 162 O.A.C. 171 (CA)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. AU.028

Marjorie Chomos and Leslie Chomos (plaintiffs/respondents in appeal) v. Economical Mutual Insurance Company (defendant/appellant)

(C36573)

Indexed As: Chomos v. Economical Mutual Insurance Co.

Ontario Court of Appeal

Catzman, Sharpe and Cronk, JJ.A.

August 19, 2002.

Summary:

Chomos was injured in a motor vehicle accident in California while she was a passenger in a vehicle driven by Willsie. Chomos was insured under an Ontario automobile policy issued by Economical, which included underinsured motorist protection coverage (the OPCF 44). Chomos and her husband settled a lawsuit in California for $100,000, the limit of Willsie's insurance policy. Pursuant to the OPCF 44, the Chomos sued Economical in Ontario for losses which exceeded Willsie's policy limit. The OPCF 44 provided that issues of "quantum" were to be decided in accordance with the law of Ontario and issues of "liability" were to be decided in accordance with the law of the place where the accident occurred. A motion was brought to determine the question of whether the no-fault provisions in ss. 267.1 and 267.2 of the Insurance Act pertained to issues of quantum or issues of liability.

The Ontario Superior Court, in a decision reported at [2001] O.T.C. 714, held that the action was not governed by ss. 267.1 and 267.2 as those sections concerned issues of liability, rather than issues of quantum. Economical appealed.

The Ontario Court of Appeal dismissed the appeal.

Conflict of Laws - Topic 7245

Contracts - Choice of law - Insurance contracts - Chomos was injured in a motor vehicle accident in California while she was a passenger in a vehicle driven by Willsie - Chomos was insured under an Ontario automobile policy issued by Economical, which included underinsured motorist protection coverage (the OPCF 44) - Chomos and her husband settled a lawsuit in California for $100,000, the limit of Willsie's insurance policy - Pursuant to the OPCF 44, the Chomos sued Economical in Ontario for losses which exceeded Willsie's policy limit - The OPCF 44 provided that issues of "quantum" were to be decided in accordance with the law of Ontario and issues of "liability" were to be decided in accordance with the law of the place where the accident occurred - The Ontario Court of Appeal affirmed that the action was not governed by the no-fault provisions contained in ss. 267.1 and 267.2 of the Insurance Act because those sections concerned issues of liability rather than issues of quantum.

Conflict of Laws - Topic 7806

Torts - Choice of law - Torts committed outside Canada - Actions against automobile insurers - [See Conflict of Laws - Topic 7245 ].

Insurance - Topic 5010.1

Automobile insurance - Compulsory government schemes - Limitation on causes of action - General (incl. when applicable) - [See Conflict of Laws - Topic 7245 ].

Insurance - Topic 5181

Automobile insurance - Compulsory government schemes - Uninsured or underinsured motorist coverage - General - [See Conflict of Laws - Topic 7245 ].

Cases Noticed:

Meyer et al. v. Bright et al. (1993), 67 O.A.C. 134; 15 O.R.(3d) 129 (C.A.), refd to. [para. 12].

Somersall v. Friedman et al. (2002), 292 N.R. 1; 163 O.A.C. 201 (S.C.C.), refd to. [para. 20].

Schneider v. Maahs Estate (2001), 151 O.A.C. 239; 56 O.R.(3d) 321 (C.A.), refd to. [para. 20].

Craig v. Allstate Insurance Co. of Canada (2002), 161 O.A.C. 140 (C.A.), refd to. [para. 20].

Despotopoulos v. Jackson, [1992] I.L.R. 1-2793 (Ont. Gen. Div.), refd to. [para. 20].

Tolofson v. Jensen and Tolofson, [1994] 3 S.C.R. 1022; 175 N.R. 161; 77 O.A.C. 81; 51 B.C.A.C. 241; 84 W.A.C. 241, refd to. [para. 30].

Wong v. Lee et al. (2002), 157 O.A.C. 340; 211 D.L.R.(4th) 69 (C.A.), refd to. [para. 31].

Brissette v. Westbury Life Insurance Co., [1992] 3 S.C.R. 87; 142 N.R. 104; 58 O.A.C. 10, refd to. [para. 33].

Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252; 147 N.R. 44; 83 Man.R.(2d) 81; 36 W.A.C. 81; 99 D.L.R.(4th) 741, refd to. [para. 33].

Orfanakos v. Ingoglia (1995), 22 O.R.(3d) 167 (Gen. Div.), dist. [para. 33].

Thai v. Dao et al. (1998), 70 O.T.C. 119; 5 C.C.L.I.(3d) 96 (Gen. Div.), refd to. [para. 38].

Salminen v. Emerald Taxi Ltd. (1999), 50 C.C.L.T.(2d) 180 (Ont. Sup. Ct.), refd to. [para. 44].

Schultz v. Panorama Transportation Inc. et al., [2001] O.T.C. 499; 31 C.C.L.I.(3d) 84 (Sup. Ct.), refd to. [para. 45].

George v. Gubernowicz et al. (1999), 95 O.T.C. 155; 44 O.R.(3d) 247 (Gen. Div.), refd to. [para. 45].

Hurst v. Leimer (1995), 26 O.R.(3d) 760 (Gen. Div.), refd to. [para. 45].

Gignac v. Neufeld (1999), 119 O.A.C. 43; 43 O.R.(3d) 741 (C.A.), refd to. [para. 50].

Statutes Noticed:

Insurance Act, R.S.O. 1990, c. I-8, sect. 267.1, sect. 267.2 [para. 3].

Authors and Works Noticed:

Samis, L., S.E.F. 44 Family Protection Coverage, [1987] L.S.U.C. Spec. Lect., Insurance Law 175, generally [para. 20].

Counsel:

Randall B. Carter and Patricia J. Forte, for the appellant;

M. Claire Wilkinson and Stephen E. Firestone, for the respondents.

This appeal was heard on April 25, 2002, before Catzman, Sharpe and Cronk, JJ.A, of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Cronk, J.A., and was released on August 19, 2002.