Pepe v. State Farm Mutual Automobile Insurance Co., 2011 ONCA 341

• Judge: Doherty, Moldaver and Feldman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 11, 2011
• Jurisdiction: Ontario
• Citations: 2011 ONCA 341;(2011), 282 O.A.C. 157 (CA)

Pepe v. State Farm (2011), 282 O.A.C. 157 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. AP.040

Massimo Pepe, Amato Pepe, Rosalba Pepe, David Pepe and Lidia Pepe (plaintiffs/respondents) v. State Farm Mutual Automobile Insurance Company (defendant/appellant)

(C52973; 2011 ONCA 341)

Indexed As: Pepe v. State Farm Mutual Automobile Insurance Co.

Ontario Court of Appeal

Doherty, Moldaver and Feldman, JJ.A.

May 3, 2011.

Summary:

Pepe and his then girlfriend (Aguirre) were injured in a single car accident. Pepe claimed that the accident was caused by an unidentified driver. Pepe sued his insurer for unidentified coverage under the Family Protection Endorsement OPCF 44R. OPCF 44R was only available if the claimant's evidence was corroborated by "other material evidence". Pepe relied on Aguirre's evidence to provide that corroboration. The insurer asserted that, inter alia, Aguirre's evidence did not fulfill the corroboration requirement because of her personal financial stake in the outcome (she was also suing the insurer for damages caused by the unidentified driver) and her close personal relationship with Pepe at the time of the accident. Both parties moved for a determination of whether Aguirre's evidence could meet the corroboration requirement in OPCF 44R.

The Ontario Superior Court, in a decision reported at [2010] O.T.C. Uned. 2977, held that Aguirre's evidence could corroborate Pepe's claim. The insurer appealed.

The Ontario Court of Appeal dismissed the appeal.

Insurance - Topic 4115.1

Automobile insurance - Uninsured or underinsured motorist coverage - Claim against unidentified driver - Evidence - Pepe and his then girlfriend (Aguirre) were injured in a single car accident - Pepe claimed that the accident was caused by an unidentified driver - Pepe sued his insurer for unidentified coverage under the Family Protection Endorsement OPCF 44R - OPCF 44R required that the claimant's evidence be corroborated by "other material evidence" - Pepe relied on Aguirre's evidence to provide that corroboration - The insurer asserted that Aguirre's evidence did not fulfill the requirement because of her personal financial stake in the outcome (she was also suing the insurer for damages caused by the unidentified driver) and her close personal relationship with Pepe - The Ontario Court of Appeal stated that the language of OPCF 44R could not justify extending the very limited and well-defined categories of persons who could not give corroborative evidence (spouses and dependent relatives) to the much broader and less defined group of persons having a close personal relationship with the claimant - Aguirre did have a financial stake in the outcome - However, under the common law and the Ontario Evidence Act, her evidence was capable of corroborating Pepe's evidence - The language of OPCF 44R did not dictate a departure from that traditional approach - The independence requirement referred to the independence of the evidence, not the neutrality of the witness - The witness's neutrality, or lack thereof, was relevant to the witness's ultimate credibility - Aguirre's evidence of how the accident happened was independent of Pepe's assertion that the accident was caused in that manner - She was neither Pepe's spouse nor a dependent relative - Her evidence was material to the claim - It was capable of providing the required corroboration.

Cases Noticed:

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 15].

Paquette v. Chubb et al. (1988), 29 O.A.C. 243; 65 O.R.(2d) 321 (C.A.), refd to. [para. 15].

Sands Estate v. Sonnwald (1986), 9 C.P.C.(2d) 100 (Ont. H.C.), refd to. [para. 15].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 15].

Counsel:

Chris G. Paliare, for the defendant/appellant;

Jerome Morse, for the plaintiffs/respondents.

This appeal was heard on April 11, 2011, by Doherty, Moldaver and Feldman, JJ.A., of the Ontario Court of Appeal. Doherty, J.A., released the following judgment for the court on May 3, 2011.