In September 2012, the Supreme Court of Newfoundland and Labrador released two concurrent decisions related to a collision between a pedestrian on a crosswalk and an unknown vehicle. The first decision, Tucker v. Unknown Person, dismissed the plaintiff's application to add his own automobile insurer as a defendant to the action. In the second decision, Tucker v. AXA Insurance, the Court dismissed Tucker's direct action against his own automobile insurer for Section D policy benefits as the limitation period had expired.
Tucker v. Unknown Person, 2012 NLTD(G) 132
Ian Tucker initiated an action in negligence against an unknown person, claiming personal injuries as the result of being struck by a motor vehicle while crossing a road at a designated crosswalk. Neither the driver nor the car was identified. The statement of claim was never served. Tucker applied to have AXA General Insurance ("AXA"), his own automobile insurer, added as a defendant and to amend the statement of claim to seek payment by AXA of Section D policy benefits – damages caused by an uninsured or unidentified driver.
The only matter heard by the Court was Tucker's application to add AXA as a defendant to the proceeding. In reaching a decision, Orsborn CJ addressed Rule 7.04(2)(b) of the Newfoundland and Labrador Rules of the Supreme Court, 1986 (the "Rules") which permits the Court to join a party to an action if they ought to have been joined as a party at the commencement of the proceeding or if their participation is necessary to the effectual adjudication of the matter.
In applying Rule 7.04(2)(b), it was necessary the Court consider the effect of the expiration of the limitation period in relation to the claim against AXA. In so considering, the Chief Justice addressed the prior decision of the Newfoundland and Labrador Court of Appeal in 10475 Newfoundland Limited v. Houston. Specifically, he held that the case supported the position that Rule 7.04(2)(b) operates to allow the addition of a party to a proceeding under the proper circumstances and further, that, by virtue of section 11(1)(d) of the Limitations Act, no limitation period operates as an impediment to the addition of such a third party.
The Court ultimately dismissed Tucker's application, finding that the action as framed was an in personam claim between two individuals – the plaintiff seeking damages for the negligence of the defendant. As such, the Court held that AXA was neither a party that ought to have been joined to the proceeding at the outset, nor a party whose participation was necessary to the effectual adjudication of the proceeding.
Tucker v. AXA General Insurance, 2012 NLTD(G) 133
In November 2011, four years after the accident at issue in Tucker v Unknown Person, Tucker commenced a direct action against AXA, claiming under Section D of his policy. The sole issue in this case was whether the action against AXA had been commenced before the expiration of the applicable limitation period.
Relying on the decision of the Ontario Court of Appeal in Johnson et al v. Wunderlich et al, Orsborn CJ held that, in a matter involving only an unidentified driver, the injured party is required to pursue a direct action against its own insurer. Again relying on a decision of the Ontario Court of Appeal, Chambo v. Musseau, the Chief Justice distinguished the negligence claim against the tortfeasor from the direct action against the insurer and held that the limitation periods applicable to each differed. Specifically, the Chief Justice held that the action based in negligence was subject to Section 5 of the Limitations Act and the direct action against the insurer was governed by Section 9 of the Uninsured Automobile and Unidentified Automobile Coverage Regulations.
Ultimately, Tucker's action against AXA was dismissed on the basis that the two year limitation period set out in s. 9 of the Uninsured Automobile and Unidentified Automobile Coverage Regulations had expired. Orsborn did address the discoverability argument advanced by Tucker, but concluded that the cause of action arose on the date of the accident and in Tucker's case, arose no later than November 1, 2007 when Tucker's counsel gave AXA notice of a potential claim. The action against AXA was not commenced until November 2011 and was therefore outside of the limitation period.
These cases highlight two important points where expired limitation periods are an issue:
- A party cannot be added to an action as a defendant under Rule 7.04(2)(b) of the Rules unless they are found to be a party that ought to have been joined at the commencement of the proceeding or whose participation is necessary to the effectual adjudication of the proceeding.
- In cases involving an unidentified driver the only option for an insured who wishes to pursue a Section D claim for damages is a direct claim against its own insurer. The authorities are clear that a claim against one's own insurer will be discoverable when the plaintiff knew or ought to have known that the driver was unidentified and/or unidentifiable.