Bolduc v. Burley, (1984) 4 O.A.C. 142 (DC)

Judge:Griffiths, J.
Court:Superior Court of Justice of Ontario
Case Date:May 25, 1984
Jurisdiction:Ontario
Citations:(1984), 4 O.A.C. 142 (DC)
 
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Bolduc v. Burley (1984), 4 O.A.C. 142 (DC)

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Bolduc v. Burley

No. 540/83

Indexed As: Bolduc v. Burley

Ontario Divisional Court

Griffiths, J.

June 5, 1984.

Summary:

The defendant driver collided with the plaintiff's parked automobile and also damaged the plaintiff's lawn. The plaintiff's insurer paid a portion of the plaintiff's claim respecting damage to the automobile. The plaintiff recovered the uninsured portion of his claim from the defendant personally and gave the defendant a release. The plaintiff's insurer brought a subrogation action against the defendant under s. 242 of the Insurance Act respecting the amount paid by the insurer to the plaintiff. The insurer also brought a separate action in its own name; the two actions were tried together.

The trial judge held that the insurer was bound by the release and had no right of action either in its own name or in the insured's name for the subrogated claim. The insurer appealed.

The Ontario Divisional Court allowed the appeal and held that the insurer was not bound by the release.

Insurance - Topic 2897

Subrogation - Action by insurer - Bars - Release by insured - The Ontario Divisional Court held that a release signed by an insured was ineffective to bar the insurer's rights of subrogation, unless the insurer concurred in the execution of the release.

Cases Noticed:

Biafore v. Bates-Pasis Leasing Inc. (1976), 11 O.R.(2d) 409, appld. [para. 5].

Statutes Noticed:

Insurance Act, R.S.O. 1980, c. 218, sect. 242 [paras. 3, 5].

Counsel:

P. Samworth, for the appellant/plaintiff;

Stephen G. Burley, in person.

This appeal was heard before Griffiths, J., of the Ontario Divisional Court on May 25, 1984, whose decision was delivered orally and released on June 5, 1984.

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