In a very recent decision - Elias v. Koochek – the Court
addressed the issue whether the insurer of a renter of a vehicle
who is not named as a defendant in the main action, but has been
brought into the action as a third party, has priority over
the insurer of the owner of the rental vehicle.
The third party Moshe rented a car from Avis. The defendant
Koochek was operating the vehicle with Moshe's consent when he
was involved in a collision. Koochek's passengers sued him and
Avis. Koochek refused to add Moshe as a defendant. Avis third
partied Moshe and brought a motion for determination of a question
of law – i.e., whether Moshe's insurer, Intact, was
required to respond first to the plaintiffs' claim. The issue
focused on the meaning of the term "insurance available"
as that term was used in subsection 277(1.1) of the Insurance
The Court concluded that the renter's policy issued by
Intact responded first and that it did not matter that Moshe was
not named as a defendant by the plaintiffs. In coming to this
conclusion, the Court noted that finding otherwise would
circumvent the clear intent of the legislature that renter's
policies should respond in priority to those of the owner of the
Although most plaintiff's lawyers will add renters as
defendants when requested by the rental car's insurers, some
still refuse to do so. This decision confirms that the priority
provisions still apply even if the renter is brought into the
action by way of third party claim.
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