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Rule 49 consequences were limited and costs were fixed at $25,000.
This was a costs endorsement following a successful summary judgment motion that disposed of the entire proceeding.
The successful plaintiff sought full indemnity costs of slightly less than $36,000 after delivering a formal offer to settle seven days before the hearing.
The court held that Rule 49 cost consequences should apply only from delivery of the offer and only to preparation for and attendance at the hearing.
Applying proportionality, the court fixed fair costs at $25,000 inclusive of disbursements and taxes.
Summary judgment granted to mortgagee for mortgage shortfall under standard mortgage clause following property fire.
The plaintiff mortgagee brought a motion for summary judgment against the defendant insurer to recover the shortfall on a mortgage following a fire at the insured property and a subsequent power of sale.
The insurer denied the claim, arguing the mortgagee was only entitled to the actual cash value of repairs and had failed to file a timely proof of loss.
The court granted summary judgment, holding that the standard mortgage clause created a separate contract between the mortgagee and insurer, entitling the mortgagee to recover its shortfall regardless of the mortgagor's actions or the lack of repairs.
