Automobile Insurance Co.,  O.J. No. 2713, 75 C.C.L.I. (4th)
141 (S.C.J.), a case dealing with OPCF 44R.
 Mr. Hartley commended both approaches as different
avenues to the same end. Each approach prevents double recovery, and yet ensures that the insurer does not share the benefit
of the claimant’s efforts in securing available recovery from the
tortfeasor without also sharing the costs.
 The motion judge accepted the Green approach. He held
that Mr. Hartley was not entitled to claim the U.S. fees from the
amount payable as compensation for a shortfall in compensatory
damages under the OPCF 44R. He was, however, entitled to
claim them as special damages.
 I agree with the motion judge that the U.S. fees are not
recoverable as an insurance benefit under OPCF 44R. On the
clear terms of s. 3 of the endorsement, what is being provided by
the insurer is indemnification for the shortfall in “compensatory
damages in respect of bodily injury to or death of an insured
person arising directly or indirectly from the use or operation of
an automobile” (emphasis added). While the U.S. fees were
clearly incurred in securing “compensatory damages”, they are
not themselves compensatory damages.
 Moreover, the words of OPCF 44R setting out the quantification of the amount payable by Security National are clear in
preventing recovery of the U.S. fees as a policy benefit. Section
13. In determining any amounts an eligible claimant is entitled to recover
from an inadequately insured motorist, no amount shall be included with
respect to costs.
 Together, ss. 6 and 7 of OPCF 44R underscore that insurance coverage does not extend to the payment of fees expended
in securing compensatory damages:
6. The amount payable to an eligible claimant under the change form shall
be calculated by determining the amount of damages the eligible claimant is
legal entitled to recover from the inadequately insured motorist, and deducting from that amount the aggregate of the amounts referred to in Section 7
of this change form, but in no event shall the insurer be obliged to pay an
amount in excess of the limit of the coverage as determined under Sections 4
and 5 of this change form.
7. The amount payable under this change form to an eligible claimant is
excess to an amount received by the eligible claimant from any source, other
than money payable on death under a policy of insurance, and is excess of
the amounts that were available to an eligible claimant from
(a) the insurers of the inadequately insured motorist, and from bonds,
cash, deposits or other financial guarantees given on behalf of the
inadequately insured motorist[.]