Passero v. Fitt

Citation: 2015 ONSC 7195

Court File No.: 1634/10; 3683/11; 53291/11

Date: 2015-11-20

Superior Court of Justice – Ontario

RE: Maria Rosa Passero, Trustee of the Estate of Andrew Martin Passero et al., plaintiffs

AND: Gordon Fitt, Deanna Fitt, Youngs Insurance Brokers Inc. and Axa Canada Inc., defendants

AND: State Farm Mutual Insurance Company, Intact Insurance Company and Dalton Timmis Insurance Group Inc., third parties

AND RE: Heron et al. v. Fitt et al. (3683/91); Barker et al. v. Fitt et al. (53291/11)

BEFORE: Mr Justice Ramsay

COUNSEL: Sheila P. Marcantonio for the plaintiffs; James Greve for Deanna Fitt; Douglas N. Patton for State Farm; David Murray for Intact Insurance; Christopher P. Klinowski for Axa Canada Inc.; Steven C.J. Venhuizen for Scott Heron; Peter Sheppard for Cooperators Insurance; Sharon McKay for Dodie Barker; Arthur Camporese for Gore Mutual;

ENDORSEMENT

[1] This endorsement deals with the cost consequences of my decision of November 2, 2015 [2015 ONSC 6723].

[2] Gordon Fitt sneaked the family car out of the matrimonial home and then crashed it on the highway, killing Andrew Passero and injuring his passenger, Scott Heron, and Fitt’s own passenger, Dodie Barker. Fitt and his wife had each insured the vehicle for $1,000,000 liability with separate insurers. Fitt pleaded guilty to dangerous driving and went to prison.

[3] I decided

a. Gordon Fitt and Deanna Stafford were both owners of the motor vehicle driven by Gordon in the accident;

b. Since they were both owners, Deanna is liable whether or not she consented to Gordon’s possession of the vehicle at the time; and

c. Their respective insurers were liable for $1,000,000 each, not $1,000,000 between them.

[4] The first two questions required the application of settled law to agreed facts. Fitt’s and Stafford’s insurers, Intact and State Farm, should not have denied coverage. Ownership could not seriously be contested by either Fitt or Stafford in the circumstances. State Farm and Intact, however, were justified in contesting the extent of their liability. They had an arguable point about the interpretation and application of s.277 of the Insurance Act. But they were unsuccessful.

[5] The successful side was led by the Passero plaintiffs and their insurer, Axa Canada. Their success was shared by the Heron plaintiffs and their insurer (Cooperators) and the Barker plaintiffs and their insurer (Gore Mutual). Gordon Fitt was also successful on the third question. His insurer was held to be liable for all of the $1,000,000 coverage he bought.

[6] The parties asking for costs are as follows:

Party

Costs requested as partial indemnity

Passero

$96,429.25

Axa

$48,090.91 (for the action, of which $27,662.74 for the motion)

Heron

$6,075.07

Cooperators

$35,303.74 (for the action)

Barker

$3,900

Gore Mutual

$19, 136.55 (for the action)

Gordon Fitt

Partial indemnity based on actual fees of $50,350.50

[7] The position of Deanna Stafford is that the costs requested are excessive and that they should be shared by the three unsuccessful parties, namely, State Farm, Intact and her. She also submits that the motion as far as it dealt with ownership of the vehicle was not unnecessary and that its effect will be to shorten the trial. I disagree. She had no realistic prospect of being found sole owner, which would have made her consent to Gordon Fitt’s possession relevant.

[8] I gave the unsuccessful parties 14 day to file brief written submissions. I have still not heard from Intact. State Farm did not file brief written submissions. It filed 96 pages consisting of 16 pages of submissions and 80 pages of jurisprudence. Their submissions are struck, but I will accept that their own bill of costs for the motion on a partial indemnity basis is $42,431.27.

[9] The plaintiffs were successful and should have their costs of the motions on a partial indemnity basis. The Passero plaintiffs and Axa, their insurer, did most of the work. Axa’s materials and argument were particularly helpful. I think that an amount that might reasonably have been contemplated is about $40,000 for the motion, which should be split between the Passero plaintiffs and Axa. Axa should have another $5,000 for the action. The Heron and Barker plaintiffs are entitled to about what they have asked for.

[10] It seems to be common ground that the plaintiffs’ insurers are entitled to costs from the unsuccessful defendants. I think it fair so to order in the circumstances. First, it was reasonable to join the actions for the purposes of the motion. Second, as far as the exercise of my discretion is concerned, to me the important factor in this particular case is the fact that the unsuccessful defendants, by refusing all coverage they made it inevitable that the plaintiffs would add the successful defendants as insurers. See Moore v. Wienecke, 2008 ONCA 162. The plaintiffs’ insurers are entitled to costs of the actions, since the effect of the motion is to free them from the actions. The Heron and Barker insurers should have $10,000 each for the action, which includes about $5,000 for the motion.

[11] Fitt took little part in the motion. He did not appear by counsel or file a factum. His success was mixed. He was found to be an owner, but he was also found to have $1,000,000 insurance, not $500,000. He acted immorally in taking the car and feloniously in harming the plaintiffs. I make no order for costs for him or against him.

[12] Stafford, State Farm and Intact are ordered to pay the following all-inclusive amounts within 31 days. They are jointly and severally liable for the amounts set out.

Passero

$20,000 for the motion

Axa

$25,000 for the action

Heron

$5,000 for the motion

Cooperators

$10,000 for the action

Barker

$3,900 for the motion

Gore Mutual

$10,000 for the action

J.A. Ramsay J.

Date: 2015-11-20