Jennifer P. Butkus

The Personal Insurance Company appealed a motion judge's decision striking out a third party claim against the plaintiffs' lawyers.

The plaintiffs had sued the insurer for negligence in failing to preserve a vehicle that might have helped prove their case in a personal injury action.

The insurer sought contribution and indemnity from the lawyers, alleging they breached their duty to preserve evidence.

The Court of Appeal upheld the striking of the third party claim, holding that the lawyers' alleged negligence fell within the scope of their retainer and was therefore attributable to the plaintiffs.

Where a third party's negligence is attributable to the plaintiff, no cause of action for contribution and indemnity exists against that third party.

The plaintiff, Catherine Patrick, was injured in a single-car accident in February 2014.

She initially sued Southwest Middlesex, but later sought to add The Corporation of the County of Middlesex ("Middlesex County") as a defendant.

Middlesex County moved for summary judgment, arguing the plaintiff failed to provide timely statutory notice under s. 44(10) of the Municipal Act, 2001, and that her claim was statute-barred under the Limitations Act, 2002.

The court found that Patrick did not establish a "reasonable excuse" for the more than two-year delay in notifying Middlesex County, particularly for the initial 16-month period of inaction before retaining counsel.

As satisfying the "reasonable excuse" prong of s. 44(12) is mandatory, the court granted summary judgment, dismissing the action against Middlesex County.