Joseph Masterson

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.