Jury awards injured woman $415.5K in damages, with one of two defendants settling for $150K
In a motor vehicle accident proceeding, the Ontario Superior Court fixed full indemnity costs at $74,934.33 for a defendant who had agreed to pay $150,000 pursuant to a settlement with the plaintiff through a Pierringer agreement.
Defendant Mr. De Sousa was driving his vehicle on an icy road. The plaintiff, who was his girlfriend, was sitting in the front seat and wearing a seatbelt.
After failing to stop at a stop sign, Mr. De Sousa slid into the intersection. An approaching car with the right-of-way, driven by defendant Ms. Masschelein, violently struck the passenger’s side of Mr. De Sousa’s vehicle.
The plaintiff sustained extensive injuries due to the accident. Her insurer paid accident benefits.
The plaintiff sued Mr. De Sousa and Ms. Masschelein for damages. Days before the trial, the plaintiff and Ms. Masschelein reached a settlement. Pursuant to a Pierringer agreement, Ms. Masschelein agreed to pay $150,000.
The jury awarded damages totalling $415,500.
After deducting collateral benefits of $55,760, comprising the accident benefits recovered, the net jury award was $359,740. The deduction ultimately benefited Mr. De Sousa.
On June 10, in Furtado v. DeSousa, 2026 ONSC 3356, Judge Thomas A. Heeney of the Superior Court ruled that Mr. De Sousa could deduct the settlement sum of $150,000, minus the full indemnity costs Ms. Masschelein should pay the plaintiff, from the jury award.
On the issue of full indemnity costs, counsel raised two issues in their written submissions.
First was whether the contingency fee retainer agreement between the plaintiff and her counsel should impact the costs allocation. The agreement fixed a 30 percent contingency fee of the plaintiff’s settlement or award, excluding any amount specifically directed to the payment of disbursements and taxes.
Second was whether the plaintiff’s costs of $5,552 in pursuing statutory accident benefits should affect the costs assessment.
On Aug. 27, in Furtado v. De Sousa et al, 2026 ONSC 4916, Judge Heeney of the Superior Court deducted $74,934.33 for the full indemnity costs payable by Ms. Masschelein from the settlement sum of $150,000.
To prevent double recovery by the plaintiff, the judge then deducted $75,065.67 from the net jury award of $359,740.
The judge acknowledged that an issue remained regarding the costs payable by Mr. De Sousa to the plaintiff.
Regarding the first issue raised by counsel, Judge Heeney held that the full indemnity costs award should not exceed the contingent fee for the plaintiff’s counsel, which should be at least $107,922, representing 30 percent of $359,740.
As for counsel’s second issue, the judge refused to address the plaintiff’s costs in pursuing statutory accident benefits in assessing full indemnity costs payable by Ms. Masschelein, given that she did not benefit from the amounts recovered.
The judge clarified that the plaintiff could potentially revisit this issue in a proceeding focusing on costs payable by Mr. De Sousa. The judge added that he did not have the information needed to address the issue at this point.
Attributing 25 percent of the costs incurred until the settlement date to Ms. Masschelein, Judge Heeney fixed the full indemnity costs payable by her at $74,934.33, comprising:
The judge considered the costs award proportionate to the damages awarded.
“One could argue that this amount is disproportionate to the amount recovered,” Judge Heeney wrote. “I agree that it appears so at first blush, but that is due to the Correia disbursement, which is very high on its own and has been allocated to Ms. Masschelein at 100% because it only concerns her liability issues.”
Here are some of the Ontario Superior Court of Justice’s other recent injury-related decisions involving motor vehicles.
In a proceeding involving a claim for statutory accident benefits, the court issued an Aug. 14 decision dismissing an insurer’s challenge against the Licence Appeal Tribunal’s finding that a Toronto Transit Commission bus had collided with a manhole cover protruding on the roadway.
In a personal injury proceeding arising from a motor vehicle collision, the court made a July 17 decision confirming a settlement and itemized costs amounting to $1.1951 million, then awarding additional amounts for interest, substantial indemnity costs for the tort action, and partial indemnity costs for a hearing.
To avoid the real possibility of inconsistent results, the court issued a June 29 order for one common liability trial in two actions with identical liability issues on which of the two drivers involved in a motor vehicle collision was liable.
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