Tucker v. AXA General Insurance, (2012) 327 Nfld. & P.E.I.R. 278 (NLTD(G))

• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: August 28, 2012
• Jurisdiction: Newfoundland and Labrador
• Citations: (2012), 327 Nfld. & P.E.I.R. 278 (NLTD(G))

Tucker v. AXA General (2012), 327 Nfld. & P.E.I.R. 278 (NLTD(G));

  1015 A.P.R. 278

MLB headnote and full text

Temp. Cite: [ 2012 ] Nfld. & P.E.I.R. TBEd. OC.008

Ian Tucker (plaintiff) v. Axa General Insurance (defendant)

(201101T7191; 2012 NLTD(G) 133)

Indexed As: Tucker v. AXA General Insurance

Newfoundland and Labrador Supreme Court

Trial Division (General)

Orsborn, C.J.T.D.

September 25, 2012.

Summary:

On October 13, 2007, a pedestrian (Tucker) was struck and injured by a vehicle that left the scene. Neither the driver, the vehicle nor the vehicle's owner were identified. On November 18, 2011, Tucker sued his automobile insurer, claiming Section D benefits (recovery of damages caused by an uninsured or unidentified driver). The insurer applied for a determination that the action was commenced after the expiration of the applicable limitation period and for an order dismissing the action.

The Newfoundland and Labrador Supreme Court, Trial Division (General), concluded that the action was commenced after the expiration of the two year limitation period set out in s. 9 of the Section D Regulations and dismissed the action.

Editor's Note: this judgment was released concurrently with a decision in a related matter reported at (2012), 327 Nfld. & P.E.I.R. 240; 1015 A.P.R. 240

Insurance - Topic 4116

Automobile insurance - Uninsured or underinsured motorist coverage - Claim against unidentified driver - Limitation period - The Newfoundland and Labrador Supreme Court, Trial Division (General), stated that the case law stood "... clearly and uniformly for the proposition that in cases involving only an unidentified driver the only option for an insured who wishes to pursue a Section D claim for damages is a direct claim or action against an insurer. It is not a claim for breach of contract. To suggest that because the wording in the policy is common to claims involving unidentified and uninsured drivers the same options apply in each case is, in my view, not tenable. I was not provided with any authority that considered serving an unknown driver with notice of the claim and then proceeding to judgment, all with a view to enforcing that judgment in an action against the insurer. Litigation does not proceed through to a conclusion against unknown persons. ... The elements of the cause of action involving an unidentified driver are a legal entitlement to damages (fault), damages, and an unidentified driver. The legal entitlement arises as of the date of the accident ... The authorities are clear that the 'unidentified driver' element is subject to the discoverability principle - that is, the cause of action is complete when the plaintiff knew or ought to have known that the driver was unidentified and unidentifiable. I do not accept the argument that this 'known unknown' could conceivably stretch into infinity - i.e. that one could never know for sure that the driver would remain unidentified and thus the limitation period never starts. ... Without deciding the point I would observe that it may be that this element of the cause of action does not fall into place until, starting from the time of the accident, the plaintiff has made reasonable efforts to ascertain the identity of the driver and has been unsuccessful. It has been held that making such efforts is a pre-condition to recovery against the insurer ..." - See paragraphs 53 to 56.

Insurance - Topic 4116

Automobile insurance - Uninsured or underinsured motorist coverage - Claim against unidentified driver - Limitation period - On October 13, 2007, a pedestrian (Tucker) was struck and injured by a vehicle that left the scene - Neither the driver, the vehicle nor the vehicle's owner were identified - On November 18, 2011, Tucker sued his automobile insurer, claiming Section D benefits - The Newfoundland and Labrador Supreme Court, Trial Division (General), concluded that the action was commenced after the expiration of the two year limitation period set out in s. 9 of the Section D Regulations and dismissed the action - The cause of action arose no later than November 1, 2007, when Tucker put the insurer on notice that a Section D claim would be pursued - By then the police had notified and presumably done any appropriate investigation and there was no suggestion that Tucker had not made reasonable efforts to identify the driver - The better view might be that the cause of action arose on the date of the accident, but even if one accepted November 1, 2007 as the operative date, it was clear that the action was well outside the two year limitation period - See paragraphs 57 to 60.

Limitations of Actions - Topic 2324

Actions in contract - Insurance contracts - When time begins to run - [See both Insurance - Topic 4116 ].

Cases Noticed:

July v. Neal and Home Insurance Co. (1986), 17 O.A.C. 390; 32 D.L.R.(4th) 463 (C.A.), refd to. [para. 23].

Johnson and Johnson v. Wunderlich, Wunderlich Estate and Commercial Union Assurance Co. (1986), 18 O.A.C. 89; 34 D.L.R.(4th) 120 (C.A.), refd to. [para. 30].

Hier v. Allstate Insurance Co. of Canada (1988), 27 O.A.C. 207; 51 D.L.R.(4th) 1, refd to. [para. 42].

Chambo v. Musseau et al. (1993), 65 O.A.C. 291; 106 D.L.R.(4th) 757 (C.A.), refd to. [para. 46].

Caruso v. Guarantee Co. of North America (1996), 95 O.A.C. 174; 141 D.L.R.(4th) 421 (C.A.), refd to. [para. 48].

Foster v. Young et al., [2002] O.A.C. Uned. 231; 2002 CarswellOnt 3225 (C.A.), refd to. [para. 52].

Somersall v. Friedman et al., [2002] 3 S.C.R. 109; 292 N.R. 1; 163 O.A.C. 201; 2002 SCC 59, refd to. [para. 54].

Donovan v. McCain Foods Ltd. et al. (2004), 234 Nfld. & P.E.I.R. 122; 696 A.P.R. 122; 2004 NLCA 12, refd to. [para. 56].

Counsel:

Alexander D. MacDonald, Q.C., for Ian Tucker;

Edward J. Vanderkloet, for AXA General Insurance.

This application was heard on August 28, 2012, at St. John's, N.L., by Orsborn, C.J.T.D., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following judgment on September 25, 2012.