Douglas H. McInnis

Following a complex motion regarding insurance coverage for asbestos claims where the plaintiff was unsuccessful, the successful defendant insurers sought their costs.

The plaintiff argued for a reduction based on divided success on factual issues and refusal to admit facts.

The court rejected the plaintiff's arguments, finding the defendants were the clear winners and their refusal to admit facts was not unreasonable.

The court awarded partial indemnity costs to the defendants, making some reductions to specific bills for duplication of effort among multiple counsel, totaling approximately $546,887.

The plaintiff, acting as receiver, obtained a judgment against a trust company for breach of trust.

The plaintiff then brought an action against the trust company's insurer to satisfy the judgment and moved for summary judgment.

The court found that the plaintiff had standing to sue the insurer based on an assignment of the right to sue, rather than under section 132(1) of the Insurance Act.

While the court determined that the policy initially provided coverage for the breach of trust, it ultimately held that coverage was excluded under policy provisions relating to dishonest acts and the gaining of an illegal advantage.

The court also found that the insurer's duty of good faith to the insured had been assigned to the plaintiff, leaving the issue of whether that duty was breached for trial.

In a coverage dispute arising from a judgment against a trust company, the defendant insurers sought to introduce additional evidence shortly before the hearing of a summary judgment motion after changing counsel.

The court considered whether the evidentiary record could be reopened to permit new affidavits, discovery answers, and documentary material.

The court held that a late change of counsel does not entitle a party to revise litigation strategy or add evidence contrary to established timetables and prior procedural orders.

Absent a satisfactory explanation for failing to include the evidence earlier, leave should not be granted.

The court permitted only a publicly available judicial endorsement already agreed to by the parties and refused all other proposed additions to the record.