William G. Woodward, for appellant.
Richard Campbell, for respondent.1
The judgment of the court was delivered by
PACIOCCO J.A.: —
 Glen Hartley, the respondent in this appeal, and his wife,
Theresa Hartley, were injured in a traffic accident while touring
on a motorcycle in the State of Minnesota. Mr. Hartley’s injuries
were particularly serious. The accident occurred when the Hartleys’ motorcycle was struck by a State of Minnesota-owned truck,
operated by a state employee. The Hartleys retained Minnesota
counsel and sued the State of Minnesota for damages.
 Even though Mr. Hartley’s injuries warranted damages in
excess of US$500,000, he obtained a settlement of only
US$500,000. This was the maximum payable by Minnesota to a
tort claimant, in the circumstances. The settlement was inclusive of legal fees, including a 22 per cent contingency fee, and
disbursements. After legal costs were accounted for, Mr. Hartley
was left with approximately CAD$386,500.
 Mr. Hartley looked to his Canadian insurance company,
Security National Insurance Company, to pay him the difference
between the damages he received of approximately CAD$386,500,
and the CAD$1 million underinsured motorist coverage ceiling
provided for in an endorsement to his motor vehicle insurance
policy. Specifically, he relied on the optional statutory Family
Protection Coverage endorsement, OPCF 44R, pursuant to a
policy issued to Mr. Hartley by Security National.
 Security National refused to pay. It said that Minnesota
was not an “inadequately insured motorist” within the meaning of OPCF 44R, and that, even if there were coverage, the
policy would not include legal expenses incurred in the Minnesota action.
 Mr. Hartley sued. The parties agreed to have two key
issues — (1) whether Minnesota was an “inadequately insured
motorist” within the meaning of OPCF 44R and (2) whether
1 Ms. Hartley was a plaintiff in the action against Security National Insurance Company that generated this appeal. She is referred to as a respondent in documents filed in this appeal, but she has nothing to respond to.
Material decisions made in the action have gone against her, effectively
terminating her cause of action. She has not appealed those decisions and
they are not before us.