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-44s 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 judges 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.
