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Injured in the U.S.? Why Settling Your American Claim Doesn't Bar Your Canadian Insurance Benefits

10/8/2025

For many Ontario residents, a road trip to the United States is a regular part of life. But what happens if that trip turns tragic? You're involved in a serious car accident in a state like Florida or New York, and you discover the at-fault driver has minimal insurance coverage—far too little to cover your medical bills, lost income, and pain and suffering.

You settle with the American driver for their low policy limits and sign a release. But your damages are much greater. Can you still turn to your own Ontario car insurance policy for help?

Your insurer might say no. They may argue that by signing that U.S. release, you gave up your right to claim any more money, effectively closing the door on your own benefits.

Fortunately, a landmark decision from the Supreme Court of Canada says they’re wrong. Based on the case of Sommersall v. Friedman, you can settle your claim in the U.S. and still access the underinsured motorist benefits you paid for at home.

The Problem: Low U.S. Insurance Limits

A common shock for Canadians injured south of the border is discovering how low mandatory auto insurance limits can be in many states. While Ontario has a minimum of $200,000 in third-party liability coverage (and most drivers carry $1 million or more), some states require as little as $10,000 or $25,000. This leaves a massive gap when serious injuries occur.

This is precisely why Ontario insurers offer optional OPCF 44R Family Protection Coverage. You pay an extra premium for this endorsement to protect yourself and your family from being injured by a driver who has insufficient insurance to cover your losses.

The Insurer's Roadblock: "Legally Entitled to Recover"

When you make a claim against your OPCF 44R coverage, your insurer may point to a clause in the policy stating that they will only pay the amount you are "legally entitled to recover" from the underinsured driver. They will then argue:

By signing a release in the U.S., you are no longer "legally entitled to recover" anything more from that driver.
Your release has destroyed their right of subrogation—their ability to step into your shoes and sue the at-fault driver to recover the money they pay you.

This position can leave injured victims feeling helpless, but the Supreme Court of Canada has provided a clear path forward.

The Supreme Court’s Answer in Sommersall v. Friedman

The Sommersall (2002 SCC 59) case involved this exact dispute. An injured person signed an agreement limiting their claim against the at-fault driver to their policy limits, and then sought the remainder from their own insurer . The insurer refused to pay, using the same arguments noted above. The case went all the way to the Supreme Court of Canada, which sided firmly with the injured victim.

Here’s how the Court dismantled the insurer’s arguments:

1. "Legally Entitled" is Determined at the Moment of the Crash
This was the Court's most critical finding. Your legal right to recover damages from an at-fault driver is established the instant the accident happens, not when you make your insurance claim.

The subsequent release you sign in the U.S. doesn't erase what happened. It is simply an agreement that stops you from personally collecting more money from the at-fault driver. It does not change the historical facts that the driver was at fault and that you suffered damages you were legally entitled to at that moment. Your claim against your own insurer is a separate, direct action under your insurance contract where you must prove those facts.

2. The Subrogation Argument Doesn't Hold Up
The Court also rejected the insurer’s argument about its right of subrogation being destroyed.

No Duty to Protect the Insurer: The Court found that the insurance policy does not place a duty on you to protect the insurer’s potential subrogation rights before they have paid your claim .
The Purpose of the Policy: The entire point of OPCF 44R coverage is to protect you from underinsured drivers. The risk that the at-fault driver may have no assets to pursue is the very risk your insurer agreed to cover in exchange for your premium payments. The court noted that in reality, the value of suing a person who is already underinsured is often "near-negligible" anyway.

How a Cross-Border Claim Works in Practice

The Sommersall decision clarifies that when you are injured in the U.S., your claim proceeds on two tracks:

The Tort Claim (in the U.S.): You first pursue a claim against the at-fault driver to recover their policy limits. It's essential that the release you sign is a "limited release," settling only the claim against that driver while expressly reserving your right to pursue other claims.
The OPCF 44R Claim (in Ontario): Your claim against your own insurer is a contractual claim. In this action, you must prove:
- Fault: That the U.S. driver was legally responsible for the accident. This is determined based on the laws of the state where the crash occurred.
- Damages: The full value of your losses (medical costs, income loss, pain and suffering, etc.). This is determined based on Ontario law, which is often more comprehensive than in many U.S. states.

The amount you recovered from the U.S. settlement will be deducted from your total damages, and your Ontario insurer will be responsible for the difference, up to your OPCF 44R policy limit.

Thanks to the Supreme Court of Canada, Canadians can have peace of mind that settling a claim against an underinsured American driver is a necessary step that will not prevent them from accessing the vital insurance benefits they paid for at home.

If you are a Canadian injured in the United States, or a US attorney representing a Canadian involved in a crash, reach out to Andrew Iacobelli with any questions you have at 866-234-6093.

Andrew Iacobelli is an experienced personal injury lawyer who established Iacobelli Law Firm with offices located in Ontario, Canada, Florida, and Texas, U.S.A. Andrew restricts his practice to the representation of personal injury victims in claims involving serious injuries, Catastrophic Injuries, and wrongful death in Canada and the United States. Andrew is a lifetime member of the Million Dollar Advocates Forum, and the author of "Are You a Canadian Injured in the United States? Claim the Damages and Insurance Coverage the Right Way". Andrew also hosts a popular podcast and YouTube channel on the subject of personal injury law and the rights of injury victims.

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Cross Border Injury Lawyer Discusses: Where Can You Sue for an Accident in a Foreign Country?

10/2/2022

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Residents of Ontario, Canada enjoy travelling, particularly to escape the winter weather. While these sun soaked vacations are usually great experiences, there are some occasions when injury occurs while out of the country. This can be due to a car accident, or an injury that occurs while on a vacation resort. The question that is often asked by the Ontario resident is, can I bring a lawsuit in Ontario for an accident that happened in a foreign country? This is an excellent question, and one that has been the subject of consideration by the Supreme Court of Canada. The answer, unfortunately, is it depends. Like many issues in law, there are many factors that need to be considered when determining where a lawsuit can be filed. This area of law is known as conflicts of law, and it requires a careful analysis of the facts and circumstances in the particular case.

In the leading case of Club Resorts Ltd v Van Breada, 2012 SCC 17 (CanLII), [2012] 1 SCR 572 the Supreme Court of Canada enumerated factors to be considered when assessing whether an Ontario court could exercise jurisdiction for an accident that occurred abroad. In this case, the accident occurred while on a resort in Cuba. The defendants argued that Ontario courts did not have jurisdiction and that Cuba was the more appropriate forum. In rejecting that position, the Supreme Court of Canada found that, under the circumstances, the Ontario court did have jurisdiction to hear the case.

According to the Supreme Court, the common law real and substantial connection test, requires that the party arguing that the court should assume jurisdiction has the burden of identifying a presumptive connecting factor that links the subject matter of the litigation to the forum. In the case of a tort (personal injury matter), the Court outlined the following factors as presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a dispute:
(a)         the defendant is domiciled or resident in the province;
(b)         the defendant carries on business in the province;
(c)         the tort was committed in the province; and
(d)         a contract connected with the dispute was made in the province.

If jurisdiction is established according to the factors listed above, the claim may proceed, subject to the court’s discretion to stay the proceedings on the basis of the doctrine of forum non conveniens. That means, the defendant will still have the opportunity to have the case dismissed on the basis that there is a more appropriate or convenient forum. As the Supreme Court of Canada noted in Club Resorts Ltd v Van Breada:
"If a defendant raises an issue of forum non conveniens, the burden is on him or her to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff. The defendant must show that the alternative forum is clearly more appropriate and that, in light of the characteristics of the alternative forum, it would be fairer and more efficient to choose an alternative forum and to deny the plaintiff the benefits of his or her decision to select a forum. "

As the above reveals, cross border injury cases are unique and present special factors that need to be thoroughly explored. We are leaders in cross-border injury litigation. We have represented countless Canadians injured outside of Canada, and we may be able to help you . To learn more, call us for a Free Consultation. Our phone lines are answered 24/7 - call us now toll free at 866-234-6093 or complete our online contact form here to get started.

Andrew Iacobelli is an experienced personal injury lawyer who established Iacobelli Law Firm with offices located in Ontario, Canada and Florida, U.S.A. Andrew restricts his practice to the representation of personal injury victims in claims involving serious injuries and wrongful death in Canada and the United States. Andrew is the author of "Are You a Canadian Injured in the United States? Claim the Damages and Insurance Coverage the Right Way".

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Toronto Bus Rollover Accident in New Jersey

10/9/2012

A Toronto bus carrying passengers to New York, was involved in rollover accident in New Jersey on Saturday October 6, 2012. According to reports, the Toronto bus rolled over while exiting a ramp on Interstate 80 in New Jersey. More than 20 passengers were reportedly injured as a result of this bus accident, and many were treated in local hospitals.

While it is too early to determine the exact cause of this bus accident, early reports suggest that there may be negligence on the part of the bus driver and bus company. In addition, there are reports that another vehicle may have cut-off the bus, and then fled the scene. The police are investigating the circumstances of this bus accident, and charged may yet be laid.

In addition, this bus accident may also lead to civil suits on behalf of the passengers who were injured as a result of the bus rollover accident. The injred passengers of the bus will be entitled to advance claims for accident benefits and may also be able to bring tort claims. The possibility of another vehicle having had some role in this accident also raises the possibility of an unidentified vehicle claim. Where there is evidence of an unidentified vehicle, a civil suit will likely need to include the insurance company for unidentified motorist coverage. In such accidents, there may be compensation available through insurance, which provides coverage for unidentified vehicles following a hit-and-run car accidents. Accessing the uninsured motorist insurance coverage is complex and there are strict deadlines.

Given that this bus accident involves potentially many parties, and complex issues of liability on the part of the bus driver, bus operator and, possibly, an unidentified vehicle, it would be important for those injured to consult with an experienced personal injury lawyer without delay. Since this was a cross-border bus accident that occurred in New Jersey, there are also choice of law and venue issues that will need to be considered by a personal injury lawyer.

Iacobelli Law Firm is an Ontario personal injury law firm with expertise in complex motor vehicle and commercial vehicle accidents. Lawyer Andrew Iacobelli is also experienced in cross-border and multi-jurisdictional claims, and has practiced personal injury law in the United States and Canada. If you or a loved one has been injured in a bus accident, or have been involved in a cross-border accident, it is important to speak with a personal injury lawyer as soon as practicle. The insurance companies will mobilize quickly in order to limit their exposure and defeat your potential claim. Where commercial vehicles are involved, it is especially important to have an experienced personal injury lawyer investigating the circumstances of the accident and preserving evidence, so that the insurance company does not obtain the upper hand.

Iacobelli Law Firm offers prospective clients a free consultation with a personal injury lawyer. There is no obligation to retain our personal injury law firm beyond the free consultation. Contact an Ontario personal injury lawyer today.

Injured in the U.S.? Why Settling Your American Claim Doesn't Bar Your Canadian Insurance Benefits

Cross Border Injury Lawyer Discusses: Where Can You Sue for an Accident in a Foreign Country?

Toronto Bus Rollover Accident in New Jersey

Author:
Andrew Iacobelli

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Injured in the U.S.? Why Settling Your American Claim Doesn't Bar Your Canadian Insurance Benefits

Cross Border Injury Lawyer Discusses: Where Can You Sue for an Accident in a Foreign Country?

Toronto Bus Rollover Accident in New Jersey

Author: Andrew Iacobelli

Archives

Categories

Ontario Main Offices​Richmond Hill

British Columbia

Vancouver

Toront﻿o

Vaughan

﻿FREE CONSULTATION﻿

Author:
Andrew Iacobelli

Ontario Main Offices

Richmond Hill

Toronto

FREE CONSULTATION