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.
