Frank N. DelGiudice

Following a jury trial for a motor vehicle accident where the plaintiff sought over $1 million in damages, the jury awarded $3,000 in general damages.

After applying the statutory deductible under the Insurance Act, the plaintiff's recovery was reduced to zero, resulting in the dismissal of the action.

The successful defendants sought costs of approximately $340,000 to $355,000, arguing for substantial indemnity costs from the date of their $60,000 offer to settle.

The court declined to award substantial indemnity costs, finding the offer essentially sought capitulation.

Applying a 60% partial indemnity rate and making deductions for potential duplication, the court fixed the defendants' costs at $280,000 inclusive of disbursements and taxes.

Following a jury trial for a motor vehicle accident, the plaintiff was awarded $3,000 in general damages, which was entirely eliminated by the statutory deductible under the Insurance Act.

The trial judge declined to determine the threshold motion, finding the issue moot and noting that a ruling could undermine the jury's implicit factual findings.

The court also held that the 2015 amendment to s. 267.5(9) of the Insurance Act, which requires costs to be determined with regard to the statutory deductible, operates retrospectively and applies to the upcoming costs decision.