What if I am injured by a driver with inadequate insurance?

You may still pursue a claim for damages against the driver up to the driver’s policy limits and pursue a claim for additional coverage against your own auto insurer so long as you have a valid OPCF44R Family Protection Endorsement.

However, in the absence of a valid OPCF44R Family Protection Endorsement, you may be under compensated if the value of your claim exceeds the at-fault defendant’s limits. It is also unlikely you will be able to pursue the defendant’s assets to cover the remainder of your claim. Most underinsured drivers have insufficient assets to satisfy a personal injury claim.

Therefore, it is important to consult with an experienced personal injury lawyer to ensure you are pursuing all available insurance coverage. If injured by an underinsured driver, you should consult with a personal injury lawyer as claims against underinsured drivers can be complicated. Not pursuing a certain policy may have major ramifications for your claim and leave you under compensated.

If you have been injured by an underinsured driver, this article aims to answer the most common questions about underinsured driver claims in Ontario. The following topics will be explored:

1.        What is an underinsured driver, and can I access additional coverage if I am injured by an underinsured driver?

2.        What is an OPCF44R Family Protection Endorsement?

3.        Who has an OPCF44R Family Protection Endorsement?

4.        Additional rules to be covered by a company vehicle’s OPCF44R Family Protection Endorsement

5.        An important caveat if relying on OPCF44R Family Protection Endorsement of a company vehicle

6.        What if I cannot access an OPCF44R Family Protection Endorsement?

7.        How much coverage can you access under an OPCF44R Family Protection Endorsement?

8.        Examples of How OPCF44R Family Protection coverage works

9.        What happens if multiple parties are injured by an underinsured driver?

10.  The no stacking principle

11.  OPCF44R Coverage involving lawsuits with underinsured drivers and non-driver defendants

12.  You must pursue all prospective defendants including non-drivers

13.  What if you are in your spouse’s vehicle and you are both injured by an underinsured driver?

1.        What is an underinsured driver, and can I be fully compensated if I am injured by an underinsured driver?

An underinsured driver is someone whose insurance limits are inadequate to fully compensate you for injuries and damages caused by the driver. An underinsured driver is different from an uninsured driver, who has no insurance at all. If the driver who injured you had no insurance at all, we have written a separate guide explaining claims against uninsured drivers in Ontario.

Most drivers have at-fault policy limits of $1,000,000 or $2,000,000, which is typically enough to respond to a plaintiff’s claim. Underinsured claims usually arise where the defendant has limits of $200,000 and the value of the plaintiff’s claim exceeds $200,000.

A driver may have policy limits of $200,000 for many reasons.

They could have knowingly purchased a policy for only $200,000 in liability coverage to save on premiums.

Another reason is that the accident could have occurred in the US where it is not uncommon for auto policy limits to be $15,000.

Another example is where the driver is uninsured and has no insurance at all, in which case $200,000 is available from the insurer of the vehicle you were in at the time of the accident.

Another example is where the at-fault driver who purchased a policy of insurance with $1,000,000 or $2,000,000 in limits is in breach of a condition of their auto policy at the time of the accident.  When a driver is in breach of a condition of their auto policy, their insurer may apply to reduce coverage from $1,000,000 or $2,000,000 down to $200,000 under s. 258 of the Insurance Act. One such example is where the driver refuses to cooperate with her insured throughout the legal proceedings. Another example is where a driver with a G2 licence drives with alcohol in his blood, contrary to the conditions of his licence.

Also, a driver with $1,000,000 in limits may still be underinsured if the plaintiff’s claim for damages exceeds $1,000,000.

If the value of the plaintiff’s claim exceeds the defendant’s at-fault limits, then the defendant driver is underinsured, and the plaintiff must look to her own insurance company for additional coverage pursuant to the OPCF44R Family Protection Endorsement.

2.        What is an OPCF44R Family Protection Endorsement?

An OPCF44R Family Protection Endorsement provides additional insurance coverage to individuals injured by an underinsured driver.

It is vital to be able to access an OPCF44R endorsement when injured by an underinsured driver. If you are unable to access an OPCF44R Endorsement, then you will only be able to recover compensation up to the defendant driver’s limits. If the value of your claim exceeds the defendant driver’s limits, then you will be under compensated if you do not have OPCF44R Family Protection coverage.

Before considering how much coverage one can access under an OPCF44R Endorsement, you must first determine if you have an OPCF44R Family Protection Endorsement.   

3.        Who has an OPCF44R Family Protection Endorsement?

You likely have an OPCF44R Family Protection Endorsement if you meet any of the following criteria.

(i) If you have your own policy with an OPCF44R endorsement

Assuming you have an auto insurance policy with an OPCF44R endorsement, then you can access your own policy in the event you are injured by an underinsured driver.

You can check your policy of insurance to ensure you have OPCF44R Family Protection Endorsement. Your policy OPCF44R coverage is typically equal to your at-fault limits. Below is an example of a policy of insurance describing the OPCF44R Family Protection Endorsement.

In the above example, the OPCF44R limits are $2,000,000, as they match the liability limits of $2,000,000. As will be discussed below, it is preferable to have $2,000,000 in OPCF44R limits.

But what if you do not own a vehicle with a policy of auto insurance? You must look elsewhere.

(ii) If you do not own a vehicle but your spouse or a person you are dependent upon has an auto policy with OPCF44R coverage

If you do not own a vehicle with an auto policy and OPCF44R endorsement, you may still have OPCF44R coverage through the insurer of your spouse or a person upon whom you are dependent (e.g., a parent), assuming they have an OPCF44R Family Protection Endorsement. Individuals who do not own a car but bike or walk to work may fall into this category. Children may also fall into this category.  

Conversely, your child or other dependent relatives who do not own a vehicle may also access your OPCF44R Family Protection Endorsement if they are injured by an underinsured driver. Dependent relatives are typically those who rely upon you for significant financial support and typically reside in your residence.

What if neither you, a person you are dependent upon, or your spouse own a vehicle?

(iii) If you, your spouse, or a person upon who you are dependent have regular use of a company vehicle with OPCF44R insurance, subject to exclusions:

If you are an employee, partner, or officer of a company and have regular access to a company vehicle, then you, your spouse, and your dependent relative may be covered by the OPCF44R endorsement for the company vehicle, assuming there is one.

There are additional rules that apply to company vehicles.

There are additional rules that apply to company vehicles.

4.      Additional rules to be covered by a company vehicle’s OPCF44R Family Protection Endorsement

As per the OPCF44R Family Protection Endorsement change form, and Pare v. TD Insurance et al, 2025 ONSC 5788, you, your spouse, and dependent relative may access the OPCF44R coverage of a company vehicle you have regular use of if:

(i) Any of you are injured while driving/occupying the company vehicle; or

(ii) Any of you are injured as the occupant of another automobile so long as the other vehicle is:

(a) not owned by the company; or

(b) not being leased by the company for more than 30 days, and

(c) the other vehicle is insured by an auto policy with valid OPCF44R coverage in place regardless of whether you can access this OPCF44R coverage.

(iii) Any of you are not the occupant of an automobile but are struck by an automobile (e.g., you are a pedestrian or cyclist struck by an automobile)

Again, you must have regular use of the company vehicle to access its coverage in addition to the criteria above.

5.        An important caveat if relying on OPCF44R Family Protection Endorsement of a company vehicle

It must be remembered that the company vehicle’s OPCF44R coverage will not cover the employee when injured as an occupant or driver of another person’s vehicle if that vehicle does not have an auto policy with OPCF44R coverage.

For example, if you are traveling in the United States and are injured while driving a rental vehicle, which is unlikely to have OPCF44R Family Protection coverage, then the Ontario company vehicle will not provide you with OPCF44R coverage (Macrae et al. v. Liberty International Underwriters et al, 2017 ONSC 4522). 

Alternatively, if you are injured in a friend’s vehicle which does not have OPCF44R coverage, then you will not be able to rely upon the OPCF44R endorsement for the company vehicle.

In the above examples, you may still be able to access your own OPCF44R coverage, or your spouse’s, or the OPCF44R coverage of a person upon whom you are dependent.

Motor vehicle accidents in the United States pose a serious coverage issue. Drivers in the United States are usually underinsured and have policy limits as low as $15,000. If you are unable to access an OPCF44R Family Protection Endorsement from a company vehicle, spouse, yourself, or person upon whom you are dependent, then the only insurance available to satisfy your claim will be the US driver’s at-fault limits, which can be as low as $15,000 US.

You may be able to enforce a judgment for damages against the US driver’s personal assets, but once again, most individuals do not have sufficient assets to respond to a claim for serious personal injuries. This could leave individuals driving in the United States significantly under compensated in the event of a serious accident.

What if I cannot access an OPCF44R endorsement?

6.         What if I cannot access an OPCF44R Family Protection Endorsement?

Unfortunately, if you do not fit into any of the above categories (your own auto policy, a spouse’s policy, someone you are dependent upon, or a company vehicle), then your claim will be limited to the underinsured driver’s limits (often $200,000 in Ontario) regardless of the value of your claim.

Again, this underscores the need to ensure you have OPCF44R Family Protection coverage in place if you regularly drive or even occupy a vehicle. This ensures that you have adequate coverage to protect you and your family.

If you are able to access an OPCF44R endorsement, the next important question is how much coverage you are able to access?

7.        How much coverage can you access under an OPCF44R Family Protection Endorsement?

Assuming you can access an OPCF44R Family Protection Endorsement, then the OPCF44R insurer will satisfy the portion of the plaintiff’s claim exceeding the defendant’s limits up to the difference between the underinsured driver’s limits and the OPCF44R policy limits, typically $800,000 or $1,800,000 depending on the OPCF44R limits.

                  OPCF44R maximum coverage = OPCF44R limits – Underinsured Limits

If the defendant’s limits are $200,000, and the plaintiff’s OPCF44R limits are $1,000,000, then the plaintiff will have an additional $800,000 in coverage from the OPCF44R insurer, for a total of $1,000,000 in coverage.  The OPCF44R insurer will satisfy the portion of the plaintiff’s claim exceeding the defendant’s limits up to $800,000.

If the defendant’s limits are $200,000, and the plaintiff’s OPCF44R limits are $2,000,000, then the plaintiff will have an additional $1.8 million in coverage from the OPCF44R insurer, for a total of $2,000,000 in coverage. The OPCF44R insurer will satisfy the portion of the plaintiff’s claim exceeding the defendant’s limits up to $1,800,000.

If the defendant’s vehicle limits are $1,000,000, and the plaintiff’s OPCF44R limits are $2,000,000, then the plaintiff will have an additional $1 million in coverage from the OPCF44R insurer, for a total of $2 million in coverage. The OPCF44R insurer will satisfy the portion of the plaintiff’s claim exceeding the defendant’s limits up to $1,000,000.

If the defendant’s limits are equal to or greater than the plaintiff’s OPCF44R limits, then the plaintiff will not have any additional OPCF44R coverage beyond the defendant’s limits. Total coverage will equal the defendant’s limits. The OPCF44R will not offer any additional coverage.

8.        Examples of how OPCF44R Family Protection coverage Works

Below are some examples to clarify how OPCF44R coverage works:

If the value of a plaintiff’s award for damages is $1.5 million, and the underinsured driver’s limits are $200,000, and the plaintiff’s OPCF44R limits are $1,000,000, then the plaintiff would recover $1,000,000 as follows:

·      $200,000 from the underinsured driver’s insurance

·      $800,000 from the plaintiff’s own OPCF44R insurer (as the maximum exposure of the OPCF44R insurer is $800,000 based on $1,000,000 - $200,000)

·      The plaintiff would be under compensated by $500,000.

If the same plaintiff’s claim was $1,500,000 and the plaintiff’s OPCF44R limits were $2,000,000, and the defendant’s limits were $200,000, then the plaintiff would recover the full $1,500,000 as follows:

·      $200,000 from the underinsured driver

·      $1,300,000 from the OPCF44R carrier (as maximum exposure is $1,800,000 based on $2,000,000 - $200,000)

If the same plaintiff had a $1.5 million claim but did not have an OPCF44R Family Protection Endorsement, then she will only be able to claim up to $200,000 and will be under compensated by $1.3 million:

·      $200,000 from the underinsured driver

·      No other coverage available to respond to plaintiff’s claim

·      plaintiff will be under compensated by $1.3 million.

It is possible that the plaintiff may be able to recover the remainder of her claim against the defendant’s personal assets, however underinsured defendants usually do not have sufficient personal assets to satisfy large personal injury damage awards.

The above examples illustrate the importance of purchasing an OPCF44R Family Protection Endorsement and preferably for $2,000,000 to satisfy larger claims.

9.        What happens if multiple parties are injured by an underinsured driver?

If multiple parties are injured by an underinsured driver, then they will share the defendant’s $200,000 limits in proportion to the value of their claim and claim the balance of their claim against the OPCF44R insurer up to OPCF44R’s total exposure.

For example, if person A and person B were injured by an underinsured driver, and person A had a $1,000,000 claim with OPCF44R limits of $1,000,000, and person B had a $1,500,000 claim with $2,000,000 in OPCF44R limits, they would recover as follows:

·      Person A would recover his proportionate share of $80,000/$200,000 in limits from the underinsured driver, and $800,000 from his own OPCF44R insurer (as $800,000 is the maximum exposure). Person A would recover a total of $880,000 and be undercompensated by $120,000.

·      Person B would recover her proportionate share of $120,000/$200,000 in limits from the underinsured driver, and $1,380,000 from her own insurer pursuant to the OPCF44R endorsement. Person B would recover the full value of her claim ($1,500,000) by virtue of having greater OPCF44R Family Protection limits.

Note that if Person A in the above example had OPCF44R limits of $2,000,000, then he would recover $80,000 from the defendant driver, and $920,000 from the OPCF44R insurer and be fully compensated.

The benefit of having higher OPCF44R coverage is obvious.  

10.        The "no stacking" principle

Where you are entitled to coverage from multiple policies of insurance (e.g., your policy and your spouse’s policy), the OPCF44R Family Protection Endorsement limits do not “stack” or add on top of each other.

Again, your OPCF44R coverage is reduced by the policy limits of other available OPCF44R endorsements and any other auto policy available to respond to your claim.

Below are some examples:

Example 1 – your OPCF44R limits are $1,000,000. You are struck by the defendant’s underinsured vehicle with limits of $200,000. In this case, you do not have access to $1,200,000 in insurance. You may receive up to $200,000 from the driver, and $800,000 from your OPCF44 insurer ($1,000,000 - $200,000).

Example 2 –You are struck by the defendant who is underinsured with limits of $200,000. Assume you have access to OPCF44R coverage through your spouse in the amount of $1,000,000, and your own OPCF44R coverage of $1,000,000. Your total OPCF44R coverage is not $2,000,000, as the policy limits are not stacked or added together. Your OPCF44R coverage is still $800,000 ($1,000,000 - $200,000).

Example 3 – you are struck by the defendant’s insured vehicle with limits of $200,000. Your own OPCF44R coverage is $2,000,000. Your spouse’s OPCF44 policy limits are $1,000,000. You do not have access to both policies for a total of $3,000,000, but rather $1,800,000 in OPCF44R coverage ($2,000,000 - $200,000). If you were in your spouse’s vehicle at the time of the accident, the first $200,000 would come from the defendant, the next $800,000 (spouses limits of $1,000,000 - $200,000) from your spouse’s insurer, and the final $1,000,000 (your limits of $2,000,000 – spouse’s limits $1,000,000) from your own insurer.

Example 4 – if the defendant has $1,000,000 in limits and your OPCF44R limits are $2,000,000, you do not have access to $3,000,000 in coverage but rather $2,000,000. You only have access to the defendant’s limits of $1,000,000 and $1,000,000 in excess OPCF44R coverage ($2,000,000 – the defendant’s limits of $1,000,000).

11.        OPCF44R Coverage involving lawsuits with underinsured drivers and non- driver defendants

In accidents involving underinsured drivers and non-driver defendants (tavern/bar, municipality, social host), the OPCF44 insurer will be able to reduce its exposure by the underinsured driver’s auto policy limits or the limits of any other available motor vehicle policy. However, with respect to other defendants with insurance other than an auto policy, the OPCF44 insurer will only be able to reduce the amount it owes to you by the amounts you actually received from these defendants, rather than their policy limits (Tuffnail v. Meekes, 2020 ONCA 340).

This is an important distinction where you receive an amount from the non-driver defendant that is below its policy limits and are still under compensated.  

For example, assume the following:

·      you have OPCF44R limits of $2,000,000

·      you were injured by an underinsured driver with $200,000 in limits

·      the underinsured driver was negligently overserved alcohol by a tavern (non- driver defendant) with $2,000,000 in commercial limits (these are not auto- policy limits)

·      three other individuals were injured by underinsured driver and you each have a claim value of $1,000,000.  

In this case, the OPCF44R can deduct the $200,000 of the underinsured driver’s auto policy limits to reduce its total exposure to $1,800,000. But it cannot deduct the $2,000,000 in commercial policy limits to reduce its exposure to zero, as this is not an auto policy. Therefore, the OPCF44R insurer will compensate you for the full value of your claim minus any amounts you recover from the other defendants, up to $1,800,000.

The result is that you would receive the full value of your claim ($1,000,000) as follows:

·      You would receive $50,000 from the defendant driver based on your proportionate share (25%) of the underinsured driver’s limits $200,000

·      You would receive $500,000 from the tavern based on your proportionate share (25%) share of the tavern’s limits of $2,000,000

·      You would receive the final $450,000 from your insurer.

In the example above, you would still receive the same amounts if your OPCF44R coverage was $1,000,000, as the OPCF44R insurer would compensate you for the full value of your claim minus any amounts received from the defendants, up to $800,000 ($1,000,000 – defendant driver’s limits of $200,000).

However, if you were the only person injured in the above example, then you would receive the full value of your claim ($1,000,000) from the underinsured driver and the tavern, as these defendants’ limits are adequate to cover your claim.

This raises another important point.

12.        You must pursue all prospective defendants including non-drivers

You must pursue all prospective defendants and not just your OPCF44R insurer, otherwise you risk being undercompensated. This is because your OPCF44R insurer may deduct the amounts you could have received from another defendant even if you did not sue that defendant.

This is what happened in Tuffnail v. Meekes, 2020 ONCA 340.

In that case, the plaintiff was injured by an underinsured driver with limits of $200,000.

The plaintiff had his own OPCF44R Family Protection coverage with limits of $1,000,000.

The commercial host had limits of $2,000,000 while the bartender had limits of $1,000,000.

As such, the OPCF44R insurer’s maximum exposure was $800,000 ($1,000,000 – defendant limits of $200,000).

The plaintiff sued the driver and the commercial host but not the bartender. The plaintiff was awarded damages of $3,435,034.71.

The plaintiff received $2,087,580 from the driver and commercial host leaving a shortfall of $1,347,454.71.

The plaintiff argued his OPCF44R insurer therefore had to pay $800,000, its maximum exposure, to cover this shortfall.

The OPCF44R insurer disagreed and stated that the bartender’s $1,000,000 commercial limits were available to the plaintiff, but he chose not to pursue them. Had the plaintiff sued the bartender he would have recovered an additional $1,000,000. This would have resulted in a shortfall of $347,454.71 ($1,347,454.71 – 1,000,000) which the OPCF44R insurer argued was all it had to pay to the plaintiff.

The Court of Appeal agreed with the OPCF44R insurer and reduced the amount it owed to the plaintiff to $347,454.71 from $800,000.

Had the plaintiff pursued the bartender, he would have been fully compensated.

Unfortunately, he did not, and was under compensated by approximately $1,000,000.

This may seem unfair, but it makes sense. Your OPCF44R insurance is meant to be an insurer of “last resort” where there are no other policies available to fully compensate you. If there are other policies available to satisfy your claim, the OPCF44R insurer should not have to step in and pay on behalf of another negligent party that you should have sued.

There is one last interesting but not uncommon issue that may arise when you and your spouse are injured by an underinsured driver while in your spouse’s vehicle.  

13.        What if you are in your spouse’s vehicle and you are both injured by an underinsured driver?

A harsh result may emerge where you and your spouse are injured by an underinsured driver, and you have access to multiple OPCF44R policies (your policy and your spouse’s policy).

 This occurs because of s. 18.1 of the OPCF44 Change Form, which indicates that the OPCF44R insurer of the vehicle you are in when injured has priority to respond before your own OPCF44R endorsement.

If you have an auto policy but are injured while an occupant in your spouse’s vehicle, your spouse’s OPCF44R coverage will have priority to respond to your claim.

The above produces unfair results if you and your spouse are both severely injured by an underinsured vehicle. If both you and your spouse’s OPCF44R policy limits are $1,000,000, and you both have claims valued at $1,000,000, then the following will occur:

·      You will both receive $100,000 each from the underinsured driver based on your proportionate share of the underinsured limits of $200,000

·      As your spouse’s OPCF44R policy has priority to respond, you will each receive $400,000 from your spouse’s OPCF44R insurer equaling (maximum exposure is $800,000 based on $1,000,000 - $200,000)

·      You will have received a total of $500,000 of your $1,000,000 claim value.

·      You will not be able to claim against your own policy for the remaining $500,000 of the claim because your OPCF44R limits of $1,000,000 will be reduced by your spouse’s OPCF44R limits of $1,000,000 and will be reduced to zero.

·      You and your spouse will be under compensated by $500,000 each.

If there were no priority rule, then you could choose to advance your claim against your own OPCF44R insurer for the remaining $900,000 and be fully compensated as would your spouse. However, the priority rule requires you and your spouse to instead share the OPCF44R limits of $1,000,000.

Using the above example, where you and your spouse are injured in your spouse’s vehicle, your spouse will still be undercompensated even if your own OPCF44R policy limits are $2,000,000, and your spouse’s OPCF44R limits are $1,000,000. The following will occur: 

·      You both have claims valued at $1,000,000

·      The underinsured driver has limits of $200,000

·      You and your spouse will each recover $100,000 from the underinsured driver.

·      You and your spouse will then receive a proportionate share from your spouse’s OPCF44R insurer equaling $400,000 (total spouse’s OPCF44R coverage is $800,000 based on $1,000,000 limits - $200,000 underinsured limits)

·      You will receive the remaining $500,000 from your own insurer as your insurer is liable to pay your claim up to $1,000,000 under the OPCF44R limits (your OPCF44R limits of $2,000,000 – your spouse’s OPCF44R limits of $1,000,000).

·      Your spouse will however only receive $500,000 and be undercompensated by $500,000, by virtue of having to share his/her OPCF44R limits with you.

Conclusion

There are two key takeaways from this article.

First, ensure you have access to an OPCF44R Family Protection Endorsement if you regularly drive or ride in a vehicle.  

It is worth inquiring with your insurer or broker to ensure you have $2,000,000 in OPCF44R coverage. It may be tempting to save a modest amount of money and not purchase this optional insurance. However, when you need it, it is better to have it than to want it.

Second, the law surrounding underinsured motorist coverage is complex, technical, and stressful. You should promptly consult with legal counsel who will ensure you access all available insurance policies and name all appropriate parties to a lawsuit.

Ava Hillier and Eddie Wiley practise exclusively in personal injury law and have extensive experience representing accident victims. If you have been injured by an underinsured driver, call Hillier & Hillier Personal Injury Lawyers at 905 453 8636 for a FREE CONSULTATION. Our main office is in Brampton, Ontario, and we serve clients all throughout Ontario.