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Case Summary: Tuffnail et al v Meekes et al
Defence + Indemnity

A claimant is not required to sue all tort-feasors in order to collect under the OCPF 44 Endorsement (and the Alberta SEF 44 Endorsement).
  
Tuffnail et al v Meekes et al, 2017 ONSC 2894, per H.A. Rady J.  [4268]
 
FACTS AND ISSUES:

 
The claim arose from a single car accident on September 3, 2009. There had been a wedding reception and there were allegations of over-service of alcohol. Tuffnail, a passenger who was grievously injured, brought the action against the Defendants Meekes (the impaired driver), Bolton (host of the party) and State Farm (the plaintiff Tuffnail’s OPCF 44R insurer).
 
Petrie, another passenger in the vehicle, was killed as a result of the accident. His family brought an action under the Family Law Act of Ontario and subsequently agreed to be bound by the jury’s decision in respect to liability in their action. The family sued the same defendants, as State Farm was Petrie’s insurer under an OPCF 44R Endorsement.
 
Coulthard, the bar tender, had not been sued by the Plaintiff Tuffnail.  He was third-partied into the actions by the Defendants.
 
The impaired driver Meekes had admitted liability before trial and tendered his insurance limits of $200,000 plus $75,000 towards interest and costs.  The insurance limits for the other parties were as follows:

  1. Bolton $2,000,000
  2. Coulthard $1,000,000
  3. State Farm $800,000 (ie. State Farm limits $1,000,000 less Meekes’ limits  of $200,000)

Tuffnail was granted judgement for $3.65 million following a jury trial. The Petrie family agreed damages inclusive of costs and interests would be $260,000. The jury apportioned liability 65% to Meekes, 18% to Bolton, 10% to Coulthard and 7% in contributory negligence to Tuffnail.  The jury reduced Tuffnail’s contributory negligence 45% because he his negligence in agreeing to be driven by Meekes had been partially caused by his having been over-served.  Thus, the ultimate apportionment of liability was 65% to the driver Meekes, 20.03% to the host Bolton, 11.12% to the bartender Coulthard and 3.85% to the Plaintiff Tuffnail.
 
This decision stemmed from several remaining legal issues post-jury judgement, including:

1. Did Tuffnail have access to the full underinsured coverage under the OPCF 44R Endorsement in his State Farm policy or had his failure to sue Coulthard reduced the quantum of State Farm’s liability?

2. Were the defendants entitled to an assignment of Tuffnail’s remaining claims for accident benefits against his OPCF44R insurer, State Farm?

a. State Farm argued the excess they are required to pay under the OPCF 44 should operate as if the parties had sued Coulthard: $3.65 million less the damages attributed Meekes, Bolton, and notionally Coulthard for a total of $365,000

b. The plaintiffs argued the excess should be treated as if Coulthard’s amount was not available:  $3.65 million less the amounts attributable to Meekes and Bolton for a total of $800,000 (maximum under the OPCF 44R).

3. Did Bolton have a claim over for contribution or indemnity against Coulthard?

HELD: The Court clarified how the defendants were indemnify each other for the $3.65 million judgement rendered by the jury.

1. State Farm’s right to subrogation was established on a plain reading of the Insurance Act, s. 278(1) and Article 20 of the OPCF Endorsement.  It was held that State Farm could pursue Meekes, Coulthard, and Bolton.
 
2. It was held that Bolton was not vicariously liable for Coulthard.  It was held that Coulthard (the bar tender) was either an independent contractor or volunteer.  He was not Bolton’s agent at common law or for the purposes of the Liquor Licence Act.
 
3. The host Bolton succeeded in his third party claim against the bartender Coulthard for contribution and indemnity

a. They were held to be several and concurrent tort-feasors because they caused the same injury to the plaintiffs by their separate tortious acts.
b. There was no basis for the operation of the Negligence Act to be displaced by an implied contract

4. For the purposes of the OPCF 44R, as a third party, Coulthard’s insurance was held to be not available to the plaintiffs therefore requiring State Farm to pay the entire amount available under the OPCF 44R

a. The Court looked and the purpose of the underinsured coverage: the insured protects himself by making extra payments from the risk of being injured by an inadequately insured motorist
 
b. The Court concluded the new wording in the Endorsement supported this conclusion

i. The former provision of the Endorsement required the insured to seek recovery from all possible tortfeasors or to deduct those sums from the excess coverage
 
ii. The new Article 7(b) of the Endorsement [the same as Alberta’s SEF 44 Endorsement Art. 4(b)(ii)] reads:

7. The amount payable under this change from to an eligible claimant is excess to an amount received by the eligible claimant from any source, other than money payable on death under a policy of insurance, and is excess to amounts that were available to the eligible claimant from

              …

(b)     the insurers of a person jointly liable with the inadequately insured motorist for the damages sustained by an insured person…

iii. It was held that the term “available”, in this case, meant the proportionate share of what the plaintiff actually receives from the tortfeasors and not their full policy limits

c. State Farm to pay $800,000

COMMENTARY:  
 
A claimant is not required to sue all tort-feasors to collect under their SEF 44. In Ontario, the Endorsement wording had changed, no longer requiring the claimant to sue everyone (or at least deduct the amount of that tortfeasor’s notational insurance from the amount payable under the SEF 44). That is also what is specified in Alberta’s SEF 44 Art. 4(b)(ii).  The Court found that as a third party, the bar tender’s insurance was not available to the plaintiff. The plaintiff’s insurer was required to pay the excess amount for the judgement less the two other named defendants’ culpability.