Richard F.L. Rose

In an addendum on costs following an appeal, the Court of Appeal for Ontario awarded the respondents their costs on a partial indemnity basis, fixed at $13,099.75 inclusive of disbursements and GST, having regard to their success on appeal, the complexity of the issues, and their Bill of Costs.

The minor respondent was injured in Florida when his tricycle collided with a school bus.

The respondents settled their Florida action for the maximum amount recoverable under Florida's sovereign immunity legislation.

They then sought indemnification from their Ontario insurer under the S.E.F. 44 Family Protection Endorsement for the shortfall.

The insurer appealed a motion judge's finding that the minor respondent had a cause of action.

The Court of Appeal dismissed the appeal, holding that the minor respondent was 'legally entitled to recover' damages despite the Florida statutory cap, and that the tortfeasors were 'inadequately insured' because their excess insurance was unavailable to the respondents.