Tuffnail v. Meekes, 2020 ONCA 340

The plaintiff was severely injured in a motor vehicle accident after he and the driver of his vehicle were overserved at a wedding. The trial judge originally concluded that the OPCF-44 defendant, State Farm, was required to pay $800,000.00 (being the $1 million auto insurance limit less the $200,000.00 available from the driver). The Court of Appeal reversed that aspect of the decision and held that the OPCF-44’s exposure could take into account the available insurance from the bartender, even though the bartender was a third party to the action, having been sued by State Farm, rather than the plaintiff. The Court of Appeal also rejected the trial judge’s conclusion that the bartender was severally liable only to the wedding host. The Court explained that while State Farm had no independent right to claim against the bartender (and therefore could not claim contribution and indemnity under s.1 of the Negligence Act), it did have a right of subrogation under the terms of the OPCF-44 and s. 278 of the Insurance Act. In essence, State Farm “stepped into the shoes” of the plaintiff to claim against the bartender, making his policy available and to be deducted from the net exposure to State Farm.

Hartley v. Security National Insurance Company, 2017 ONCA 715

The Plaintiff was involved in a MVA in Minnesota and sued the state for compensation. He received the maximum allowable payment under Minnesota law of $500,000.00. Given his significant injuries, the Plaintiff brought an action against his own Ontario insurer, Security National, under the OPCF44. The motion judge ordered Security National to pay the Plaintiff up to its limits of $1 million and awarded the Plaintiff special damages equivalent to the costs he paid to his US lawyers (approximately $114,000.00). On appeal, the Ontario Court of Appeal upheld the order regarding the first issue and agreed that Minnesota was an “inadequately insured motorist” under the OPCF44. The Court of Appeal reversed on the second issue and held that the OPCF44 did not require the insurer to pay special damages to compensate the Plaintiff for legal fees that he incurred in pursuing his claim in Minnesota.