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AUTOMOBILE INSURANCE - Uninsured or underinsured motorist coverage 

Tuesday, June 30, 2020 @ 5:51 AM  

Lexis Advance® Quicklaw®
Appeal by the plaintiff from the post-verdict ruling regarding his Ontario Policy Change Form 44R (OPCF 44R) endorsement and in the apportionment of liability to the third party Coulthard. Cross-appeal by State Farm from post-verdict ruling. Cross-appeal by Coulthard from the post-verdict decision refusing him leave to amend his pleadings to plead limitations defences. The plaintiff was seriously injured in a single-vehicle crash in 2009 following a rural wedding reception. The plaintiff and the driver, the defendant Meekes, were served alcohol at the reception. The groom, the defendant Bolton, hosted the reception and Coulthard was the bartender. The jury apportioned liability 65 per cent to Meekes, 20 per cent to Bolton, 11 per cent to Coulthard, and four per cent to the plaintiff. The net amount payable to the plaintiff was $3,435,035, which exceeded the aggregate of Meekes’, Bolton’s and Coulthard’s insurance coverage. Post-verdict, the trial judge ordered State Farm, the plaintiff’s insurer, to pay the plaintiff $800,000, the limit of coverage under the OPCF 44R. The trial judge found as the plaintiff did not name Coulthard as a defendant, the proceeds of Coulthard’s policy were not available to the plaintiff within the meaning of s. 7 the OPCF 44R. Post-trial, Bolton assigned his claim against Coulthard to the plaintiff.

HELD: Appeal by plaintiff and cross-appeal by State Farm allowed in part; cross-appeal by Coulthard dismissed. Coulthard was jointly liable to the plaintiff within the meaning of s. 7(b) of the OPCF 44R. His insurance was available to the plaintiff and State Farm was entitled to deduct the limits of Coulthard’s insurance coverage in calculating the amount it was required to pay to the plaintiff. In finding State Farm had a right of subrogation against Coulthard, the trial judge necessarily found Coulthard was jointly liable with Meekes. The trial judge erred in providing for pro rata sharing of any amounts State Farm received by way of subrogation only until the plaintiff received full indemnification pursuant to the terms of the OPCF 44R endorsement. The proper order was to provide for pro rata sharing until the plaintiff received full indemnification under the judgment. The trial judge did not err in limiting Coulthard’s liability to a proportion of the total judgment equal to 11 per cent of fault found by the jury. The trial judge erred in awarding prejudgment interest at a rate higher than the bank rate rather than the default rate of 1.3 per cent calculated in accordance with s. 127(1) of the Courts of Justice Act. The trial judge did not err in dismissing Coulthard’s motion to amend his pleadings due to non-compensable prejudice.

Tuffnail v. Meekes, [2020] O.J. No. 2371, Ontario Court of Appeal, A. Hoy A.C.J.O., D.H. Doherty J.A. and F.N. Marrocco A.C.J.S.J., June 1, 2020. Digest No. TLD-June292020005