The Lawyers Weekly, Vol.30, No.9 July 2, 2010

Civil Procedure
Richardson v. Sanayhie, (2010) O.J. No.2195, Ont. S.C.J., Belobaba J. May 26/10.

Motion to strike paragraphs of the statement of claim that alleged that defendant, as a designated driver, was required to monitor and control plaintiff's consumption of alcohol and supervise her behaviour. The parties lived together as common law spouses and the defendant agreed to be the designated drive before attending a house party. At the party the plaintiff became intoxicated and on the way home the the parties began to argue and the plaintiff jumped out of the moving vehicle suffering catastrophic injuries.

Motion Granted. Even though the parties lived together, it did not mean that the defendant as designated driver, had a duty to monitor and curtail plaintiff's consumption of alcohol. There was no evidence that the plaintiff relied on the defendant to supervise and control her alcohol intake whenever they went out. There was insufficient proximity between the parties on the facts as pleaded. Further, the allegations imposing supervisory and control duties on defendant simply because he was the designated driver did not disclose a reasonable cause of action.

Insurance (Motor Vehicle)
Petrasso v. State Farm Insurance Co., (2010) O.J. No. 2281, Ont. S.C.J., Allen J., May 26/10.

Motion by defendant insurer for summary judgement dismissing plaintiff''s action. Plaintiff was injured in a motor vehical accident. The plaintiff settled her claim with the other driver far below the limit and then commenced an action to recover under her excess insurance policy with defendant on basis the at-fault driver lacked sufficient coverage to respond to her loss. Defendant argued the plaintiff did not exhaust that policy limit and was thus not entitled to claim excess coverage.

Motion Dismissed. Plaintiff settlement at less than the policy limit did not preclude the claim against defendant. Plaintiff's thinking or intentions during the settlement were not entirely clear. Plaintiff's settlement should not operate to redefine the tortfeasor as not being adequately insured and permit defendant to avoid an excess claim for that reason.