De Brito v. Demeester, 2019 ONSC 6253

Two plaintiffs died in a motor vehicle accident wherein the defendant driver intentionally drove into a river. The third plaintiff survived with injuries, and the fourth plaintiff was the mother of the deceased plaintiffs. The father of the deceaseds commenced a separate action for damages. Aviva insured the defendant driver at the material time and added itself as a statutory third party to the action. It was agreed that the $200,000 limit would be split between the two estates and the surviving plaintiff. The mother of the deceaseds claimed against her OPCF-44 carrier, State Farm. Aviva was the OPCF-44 carrier for the surviving plaintiff. State Farm resolved the claim for $700,000 plus costs of $100,000 and disbursements of $27,372.65. Aviva’s $200,000 was split 52.5% to the mother and estates; 30% to the surviving plaintiff’ and 17.5% to the father of the deceaseds. At no time did Aviva pay its $200,000 into court. State Farm sought an order compelling Aviva to pay 50% of the costs agreed to in the settlement. Aviva argued that because it only faced $200,000 liability limits, it should not be responsible for costs paid by State Farm. Justice King disagreed and ordered Aviva to pay 50% of the costs, reasoning that Aviva still had an interest in the claim because the allocation of its $200,000 affected its exposure as the OPCF-44 carrier for the surviving plaintiff. Justice King noted that had Aviva paid the $200,000 into court, it would not have had to contribute to the costs settlement.