K. Kernick

Following the dismissal of the plaintiffs' action for property damage after a three-day Simplified Procedure trial, the parties made written submissions on costs.

The successful defendant sought $55,055.71 on a substantial indemnity basis, relying on multiple offers to settle.

The court found that Rule 49.10 did not apply because the plaintiffs' claim failed entirely, and the defendant's conduct did not warrant substantial indemnity costs.

Applying principles of proportionality and reasonableness, the court awarded the defendant partial indemnity costs of $20,000 plus $1,921.71 in disbursements, disallowing a $2,700 expert fee.

The plaintiffs, an independent truck driver and his company, sued the defendant for the value of a transport truck destroyed by fire while leased to the defendant.

The plaintiffs alleged the defendant breached their National Transportation Lease Agreement by failing to obtain first-party property damage insurance, and claimed negligent misrepresentation regarding the extent of coverage.

The Superior Court of Justice dismissed the action, finding the contract clearly placed the onus on the plaintiffs to satisfy themselves as to the adequacy of the insurance provided, which only covered third-party liability.

The court found no unconscionability, ambiguity, or negligent misrepresentation in the commercial transaction.