In Funk v. Wawanesa Mutual Insurance Company,1
the Court of Appeal overturned the decision of the lower
Court’ that physical contact with an “unidentified
automobile” was not required to qualify for coverage under
the SEF No. 44 Endorsement (“SEF 44”
or “Endorsement”) because that finding
went against public policy. The majority for the Court of Appeal
held that the Respondent Insured, Mr. Funk, was not entitled to
coverage under the wording of the Endorsement and there was no
residual public policy or equitable jurisdiction that enabled the
Court to extend coverage any further than for what the Endorsement
provided.
Background Facts
Mr. Funk purchased a standard automobile policy from the
appellant, Wawanesa Mutual Insurance Company, which included the
SEF 44. On May 20, 2008, while Mr. Funk was operating his motor
vehicle at night, an oncoming vehicle came over towards him in his
lane. Mr. Funk swerved right to avoid an impact, and his vehicle
rolled over. He
