The defendant brought a motion for summary judgment to dismiss the plaintiff's motor vehicle accident claim based on the expiry of the limitation period.
On the eve of the motion, the defendant abandoned it, and the parties attended a hearing solely to determine costs.
The plaintiff sought costs on a substantial indemnity basis, arguing the motion was unreasonable from the outset because the permanency of her injuries was not discoverable until a later medical report was obtained.
The court found no reason to depart from the presumption under Rule 37.09(3) that the responding party is entitled to costs of an abandoned motion.
However, the court declined to award substantial indemnity costs, finding no bad faith or egregious conduct by the defendant.
Costs were fixed at $12,500 on a partial indemnity basis.
