Plaintiff Can’t Add Third Party Driver as Defendant, Where Conscious Decision Was Made Not to Sue

In Biancale v. Vieyra, Mr. Justice David Crane dismissed a plaintiff’s motion to add, as a defendant in the proceeding, one of two drivers involved in the accident in which the plaintiff had been injured. The amendment was sought after the expiry of the limitation period. Key to His Honour’s decision was the fact that counsel for the plaintiff had deliberately not sued the second driver when commencing the action. It appears that the operation of uninsured motorist coverage greatly complicated what might have seemed, at first, to be a relatively safe decision at the time of commencing the action.

The plaintiff had been a passenger in a car driven by one Vieyra on October 5, 2000. Vieyra had turned left across the path of another car, driven by Broome. Vieyra had been charged. It appears that the task of drafting the statement of defence at the firm of solicitors representing the plaintiffs had fallen to a paralegal. She had elected to sue Vieyra but not Broome. The statement of claim also named as a defendant the plaintiff’s own insurer and a claim was made against the uninsured and underinsured coverage provided by that company (the former in the event that Vieyra proved to be uninsured).

The defendant insurer, CGU, brought a third party claim against the Broomes. It is not clear from the reasons what that claim was for. Section 265(6) of the Insurance Act allows an uninsured insurer to sue “the person or persons responsible for the use or operation of the uninsured or unidentified automobile, which, in this case, would have been Vieyra, not the Broomes. Justice Crane observed that the claim had been made “in order to have an examination for discovery and place them [the Broomes] before the court, in the plaintiff’s action, in an attempt to establish some degree of liability as against Mr. Broome, as operator, causing or contributing to the plaintiff’s injuries.”

Perhaps because of an apprehension that Vieyra would prove to be uninsured, the plaintiffs moved for leave to add the Broomes (who were already third parties) as defendants. (Presumably, the concern was s. 2(1)(c) of Regulation 676 under the Insurance Act, which provides, in relation to uninsured motorist coverage, that “the insurer shall not be liable to make any payment where the person insured under the contract is entitled to recovery money under the third party liability section of a motor vehicle liability policy”. Arguably, if it were to be established at trial that the Broomes were 1% (or more) at fault for the accident and were insured, then the plaintiffs would be “entitled to recover money under the third party liability section of a motor vehicle liability policy” (the Broomes’ policy), with the result that the plaintiffs’ own insurer would not be liable at all.

Because the limitation period had expired, the plaintiffs argued that “special circumstances” existed, warranting the addition of the Broomes as defendants.

However, Justice Crane was not persuaded. He said that the proposed defendants would be prejudiced by being brought into a lawsuit as defendants, where 1% liability would mean that they would be required to pay 100% of the damages. (It seems doubtful though, that this is the sort of prejudice contemplated by the caselaw, since it was not caused by the delay in suing the Broomes.)

Justice Crane attached particular significance to the fact that the plaintiffs (through their lawyers) had made a deliberate decision not so sue the Broomes within the limitation period. He said, “I conclude here there is an absence of the usual inadvertence of the solicitors representing a plaintiff. Rather, it is a case of the plaintiff’s agents changing their mind after the expiry of the limitation period.”

(This is an interesting comment, because it implies that the result might or would have been different, had the failure to sue the Broomes resulted from solicitor’s inadvertence.)

The moral of the story, for plaintiffs’ counsel, is that in motor vehicle litigation, all drivers whose negligence might be found to have caused the accident, should be sued. In this case, counsel for the plaintiff probably felt safe in suing only the driver who had been charged with making a left turn across the path of an approaching vehicle, thinking that at least 1% of liability would be assessed against that driver.

The question now is, what happens if the action proceeds to trial and both Vieyra and Broome are found to have been negligent? In that event, does s. 2(1)(c) of Regulation 676 [quoted above] mean that CGU has no liability under is uninsured coverage, so that there is no insurer from which the plaintiffs can collect? Or should the words, “entitled to recover money under the third party liability section of a motor vehicle liability policy” in s. 2(1)(c) be interpreted not to apply when the plaintiffs’ are not entitled to recover under the Broomes’ policy because they chose not to sue the Broomes in time?

We are not aware of any cases which have dealt directly with this issue: to recover under uninsured coverage, must a plaintiff sue every driver who might have been at fault for the accident? (We would welcome comments from any readers who know of any such decision.) In the wake of the decision of Justice Crane, this issue might have to be addressed in the Biancale case.

This entry was posted in Auto, Insurance News, Limitation Periods, Uninsured or Underinsured. Bookmark the permalink.