Executive Summary: Key Legal and Evidentiary Issues

• Determination of whether the plaintiff qualifies as an “insured person” under the OPCF 44R Family Protection Coverage endorsement in the Allstate policy.

• Interpretation of the interplay between the 44R endorsement and Special Condition 6 of the Ontario Automobile Policy (OAP-1) regarding exclusions for vehicles regularly or frequently used by employees.

• Assessment of whether the plaintiff’s use of his father’s motorcycle, which had its own 44R coverage, meets the requirements for underinsured coverage under both the TD and Allstate policies.

• Analysis of recent appellate decisions (Kahlon v. ACE INA Insurance and Hesch v. Langford) on the scope and application of 44R coverage and policy exclusions.

• Evaluation of whether TD Insurance or Allstate Insurance is ultimately responsible for indemnifying the plaintiff and reimbursing settlement funds.

• Calculation and allocation of costs and monetary awards between the defendant insurers.

Facts of the case

The case concerns a motor vehicle accident that occurred on December 6, 2018, in North Charleston, South Carolina. The plaintiff, Timothy Jacob Pare, was riding a motorcycle owned by his father, Bernard, and insured by TD Insurance. The accident was caused when another driver, Ronald Dukes, made a left turn in front of the plaintiff, resulting in a collision. Liability was conceded by Dukes, and his insurer paid out its policy limit of $25,000, which was insufficient to cover the plaintiff’s losses.

At the time, the plaintiff was an employee of Exact Laser Measurement (“Exact Laser”), a company owned by his father. He had access to a Ford F150 truck insured by Allstate, which he used as his daily driver. The Allstate policy included OPCF 44R Family Protection Coverage, as did the TD policy on the motorcycle. The plaintiff had brought the motorcycle to South Carolina and used it regularly for leisure. After the accident, the plaintiff sued both TD and Allstate, seeking underinsured motorist benefits under the 44R endorsements in both policies.

The parties agreed on the quantum of damages, settling the plaintiff’s claim for $143,500. However, they could not agree on which insurer was responsible for indemnifying the plaintiff. TD paid the settlement, with the understanding that the issue of liability between the insurers would remain unresolved pending the court’s decision.

Discussion of policy terms and clauses at issue

The central legal question was whether the plaintiff qualified as an “insured person” under the 44R endorsement in the Allstate policy, which would obligate Allstate to pay underinsured benefits and reimburse TD for the settlement. The 44R endorsement provides coverage to “eligible claimants” who are “insured persons” as defined in the policy. For corporate policies like Allstate’s, an “insured person” includes employees for whose regular use a described automobile is provided, while occupying an “other automobile” (not owned or leased by the named insured) provided that family protection coverage is in force on that vehicle.

Allstate argued that Special Condition 6 of the OAP-1 should exclude coverage for vehicles regularly or frequently used by employees, such as the plaintiff’s use of the motorcycle. However, the court found that the 44R endorsement “provides otherwise” than the OAP-1, specifically defining the scope of “other automobile” and not including a “use” component in its exclusions. The court relied on recent appellate decisions, notably Hesch v. Langford, which clarified that where the 44R endorsement addresses the same subject matter as the OAP-1 but does so differently, the endorsement takes precedence.

Analysis of the Allstate and TD policies

Applying the facts, the court found that the plaintiff was an employee of Exact Laser, regularly used a described automobile (the F150), and was occupying an “other automobile” (the motorcycle) at the time of the accident. The motorcycle had its own 44R coverage under the TD policy. The court held that the 44R endorsement in the Allstate policy did not exclude coverage based on regular or frequent use, and thus the plaintiff met the definition of “insured person” under that policy.

Regarding the TD policy, the court examined whether the plaintiff was a “dependent relative” of the named insured (his father) under the 44R endorsement. The plaintiff did not qualify as a dependent relative under the relevant definitions, except possibly as a relative while occupying the described automobile. However, this provision only applies if the plaintiff is not an insured person under any other policy’s family protection coverage. Since the court had already found the plaintiff to be an insured person under the Allstate policy, he was excluded from coverage under the TD policy.

Ruling and outcome

The court granted summary judgment in favor of TD Insurance. It held that Allstate Insurance was solely responsible for indemnifying the plaintiff under the 44R endorsement and must reimburse TD for the $143,500 settlement paid to the plaintiff. Additionally, Allstate was ordered to pay costs to TD in the agreed amount of $6,500. Thus, TD Insurance was the successful party, and the total amount ordered in its favor was $150,000, representing the settlement reimbursement plus costs.