Joint Liability And The Nature Of Subrogation Under The OPCF 44R

The Court of Appeal has released a new and detailed decision in Tuffnail v. Meekes, 2020 ONCA 340, which addresses issues related to underinsured automobile coverage.¹ The decision was written by Associate Chief Justice Hoy, who was joined by Justice Doherty and Associate Chief Justice Marrocco (ad hoc).

The key takeaways from the decision are:

• The amounts available under the OPCF 44R endorsement are excess to the amounts available to the plaintiff from the insurers of a person jointly liable with the inadequately insured motorist.
• A plaintiff does not need to sue a tortfeasor in order for the tortfeasor to be found jointly liable. In other words, the tortfeasor's insurance can be "available" to the plaintiff even if the plaintiff does not sue the tortfeasor.