James K. Brown

This is a costs endorsement for three inter-related appeals (C66633, C64430, and C64479).

The parties resolved costs for appeal C64479.

For appeals C64430 and C66633, the Court found that success was mixed, and therefore, there would be no order as to costs for those appeals.

This is an appeal from a jury trial in a personal injury case arising from a single-vehicle crash.

The plaintiffs (Tuffnail family) were injured, and liability was apportioned among the driver (Meekes), the host (Bolton), the bartender (Coulthard), and the plaintiff (Tuffnail).

Multiple parties appealed the post-verdict rulings.

The Court of Appeal found that Coulthard was "jointly liable" with Meekes for the purposes of OPCF 44R, allowing State Farm to deduct Coulthard's insurance limits, thereby reducing State Farm's payout to the Tuffnails.

The court clarified that State Farm must share subrogation recoveries with the Tuffnails on a pro rata basis until the Tuffnails receive full indemnification under the judgment, correcting the trial judge's order that limited it to the OPCF 44R endorsement.

The court upheld the trial judge's decision on Coulthard's several liability to Bolton, rejecting the argument for reapportionment of fault without Meekes.

The court found the trial judge erred in awarding prejudgment interest higher than the bank rate, reducing it to 1.3% as market rates did not justify a higher rate and the "expectation" factor was inappropriate.

Finally, the court upheld the denial of Coulthard's request to amend pleadings to add a limitation defence post-verdict due to non-compensable prejudice.

Following a jury verdict in favour of the plaintiffs in a personal injury action, the parties sought rulings on two issues.

First, the court held that under s. 278(2) of the Insurance Act, the insurer must share any subrogated recovery with the plaintiffs on a pro rata basis until the plaintiffs are fully indemnified under their OPCF 44R endorsement.

Second, the court held that a third party who defended the main action is not jointly and severally liable to the plaintiffs under s. 1 of the Negligence Act, but rather is severally liable to the defendant who commenced the third party claim.

Following a jury verdict awarding the plaintiffs $3.565 million for injuries sustained in a motor vehicle accident caused by an impaired driver, the court determined several post-trial legal issues.

The court denied the third-party bartender's request to amend his pleadings to add a limitation defence due to prejudice.

The court found the bartender was an independent contractor or volunteer, meaning the host was not vicariously liable for his negligence, but the host could seek contribution and indemnity under the Negligence Act.

The court also ruled that the plaintiffs could access their OPCF 44R underinsured motorist coverage without having sued the bartender, as his insurance was not 'available' to them within the meaning of the endorsement.

Finally, the court ordered the assignment of future statutory accident benefits to prevent double recovery.