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Summary Judgment Motion: Aggressive Liability Challenge in MVA Case (or “Always Sue Every Possible Tortfeasor”)

Sometimes you simply have to sue your own family members.

It doesn’t get easier, but after 18 years of dealing with families that have their lives turned upside down because of a car accident, I have learned to explain more poignantly why, in some circumstances, the hurt family members “must” sue the driver of their car – very often the Dad or Mom of the family – even though the car accident was ‘not their fault’.

If you’re a car passenger, you almost always sue every single possible source – ie the driver and owner of every car involved in the accident – because it you don’t, problems might arise.

Case in point: Gladu v. Hearn, 2013 ONSC 7608 (CanLII), wherein the injured Dad, a passenger, did not sue his son, who was driving their car at the time. Their passenger vehicle was overtaking a large RV motorhome when, they say, the motorhome slowed down extremely and then made a last second unsafe lane change directly into the plaintiff’s vehicle.

This is a good reminder for lawyers practicing in the area – sue all drivers involved in the accident and allow the insurers to fight it out.

Here, the motorhome brought the son in as a Third Party. Unfortunately, the plaintiff/Dad still did not amend the claim or start a new one to bring the son in as a defendant (perhaps they were out of time per the Limitation Act).

Anyways, the predictable happened.  The son’s insurer brought a very aggressive summary judgment motion to dismiss the Third Party claim.

The problem for the plaintiff Dad is that if the defendant RV is not found responsible, at all, for the accident, then that would mean no recovery, at all.  Obviously the plaintiff Dad took this calculated gamble in choosing not to name the driver son as a defendant but why, exactly, would you introduce even a shadow of doubt when that is unnecessary?

On the summary judgment motion, Justice R.D. Gordon, carefully weighed the evidence and applied the principles in the seminal Combined Air decision and found that the liability argument, with two completely contradictory versions of events, required a Trial Judge to hear the evidence in full before deciding.
Gregory Chang
Toronto Personal Injury and Insurance Lawyer