Does the phrase “legally entitled to recover” apply to motor vehicle insurance policies?

The interpretation of the phrase “legally entitled to recover” received lengthy consideration in the recent case of Somersall v. Friedman, [2002] S.C.J. No. 60, 2002 SCC 59. In that case Iacobucci J. for the majority of the court clearly finds that the legal entitlement to recover damages, which is the basis for a claim under an S.E.F. 44 endorsement in a motor vehicle insurance policy, can be determined only by referring to the time of the accident giving rise to the claim. At that time the fault, if any, has occurred and the injury requiring damages has occurred. There is no need to await a decision about quantum or liability before the legal entitlement arises. Fault and damages, as well as the inadequate coverage of the tortfeasor, will have to be proven to give effect to the entitlement, but the entitlement exists as of the time of the accident.