Theodore H. Rachlin

The respondents sought substantial indemnity costs of over $66,000 for an appeal, relying on an offer to settle.

The Court of Appeal held that Rule 49 does not apply to appeals and that substantial indemnity costs are reserved for exceptional circumstances, which were not present.

The appellant argued the old costs regime should apply as the appeal was argued before the new costs grid took effect.

Following recent jurisprudence, the Court confirmed the new costs grid is procedural and applies retroactively to costs awarded after its implementation.

The respondents were awarded partial indemnity costs of $22,000 in fees plus disbursements.

A university student was severely injured during a freshman orientation mud slide event.

The student sued the university and the student residence president, among others.

The appellant, who insured the university and its agents, settled the lawsuit and sought equitable contribution from the respondent, who provided a homeowners' policy to the residence president's parents.

The Court of Appeal dismissed the appeal, finding that while the residence president was covered under his parents' policy, the claim was excluded by the policy's business exclusion clause because he received an honorarium for his duties.

As there was no concurrence of coverage, the appellant was not entitled to equitable contribution.