In Freudmann-Cohen v. Tran, the Ontario Court of Appeal considered the issue of subrogation in the context of Third Party Claims. The Insurer was named as a defendant in an action by its own insured under the underinsured coverage (OEF 44) of its policy. The tortfeasor was a codefendant.
The insurer discovered that the tortfeasor had been delivering pizza at the time of the accident. The limitation period for the plaintiff had expired by this time. The insurer sought to add the employer as a Third Party to the action. The employer moved to strike the Third Party Claim, arguing that this was a subrogated claim which the insurer was attempting to pursue in its own name.
The Court of Appeal concluded that the requirement for an insurer to sue in the name of its insured was a procedural rule. When balanced against the procedural rule for Third Party Claims, the objectives expressed in the rule, "namely, more effective and less costly litigation, and the avoidance of multiplicity of proceedings, should carry the day".
The Insurer was permited to bring the subrogated action in its own name.
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