Summary
applying "reasonableness" standard in award of expert witness fees under Rule 68
Summary of this case from Rash v. MoczulskiOpinion
C.A. No. 00C-12-047
Submitted: May 2, 2002
Decided: August 8, 2002
Upon Consideration of Defendant's Motion for Costs.
GRANTED.
Douglas B. Catts, Esq., Dover, Delaware. Attorney for Plaintiffs.
Robert B. Young, Esq., Dover, Delaware. Attorney for Defendant.
ORDER
Upon consideration of the defendant's motion for costs, the plaintiffs' response, and the record of the case, it appears that:
1. Plaintiff Noreen Gerken filed this civil action seeking damages for injuries she suffered in an auto accident caused by the defendant, Jamie L. Atkinson. Ms. Gerken's husband, Donald Gerken, claimed loss of consortium. Trial was held in April of this year. The jury awarded Ms. Gerken $5,000 for her injuries and gave Mr. Gerken a zero award for loss of consortium. The defendant has now filed a motion for reimbursement of costs which she incurred subsequent to the making of an offer of judgment under Superior Court Civil Rule 68. The offer was made in September 2001. At that time, there were two defendants, Ms. Atkinson and Friedrich Johnson. The offer, made by both, offered the sum of $15,000 to both plaintiffs. The offer was not accepted. Later, shortly before trial, Mr. Johnson was dismissed from the action by stipulation, leaving only defendant Atkinson. In their response in opposition to the motion, the plaintiffs argue that the dismissal of Johnson invalidated the offer. The defendant also disputes the amount of the costs sought. For the reasons which follow, the Court concludes that in this particular case the dismissal of one defendant did not invalidate the offer of judgment, that the offer of judgment was valid and effective, and that under Rule 68 an award of costs should be made against Ms. Gerken.
The offer read as follows: "NOW COMES Defendants, Jamie Atkinson and Friedrich Johnson, and makes this Offer of Judgment, to wit: $15,000.00, plus trial costs accrued as of September 26, 2001, pursuant to Superior Court Civil Rule 68."
No award of costs can be made against Mr. Gerken under Rule 68 because of the jury's zero award as to him. In Hercules, Inc. v. AIU Ins. Co., 784 A.2d 481 (Del. 2001), the Supreme Court held that the rule does not apply to a plaintiff who does not obtain a judgment. In her motion, the defendant also relies upon Superior Court Rule 54 and 10 Del. C. § 5101. Since the costs requested will be awarded under Rule 68, consideration of Rule 54 and 10 Del. C. § 5101 is unnecessary.
2. Under Rule 68, a party defending against a claim may offer to allow judgment to be taken against the party for an amount specified in the offer. If the adverse party does not accept the offer within ten days, it is deemed withdrawn. If the adverse party obtains a judgment against the defending party at trial which is not more favorable than the amount offered, the defending party is entitled to costs accrued after the date the offer was made. The purpose of Rule 68 is to encourage settlements by shifting to the plaintiff part of the risk of proceeding with the lawsuit where it appears likely that "the plaintiff will obtain a judgment but the amount of recovery is uncertain." General principles of contract law are applicable in interpreting offers of judgment and their acceptance.
Delta Airlines, Inc. v. August, 450 U.S. 346, 352, 101 S.Ct. 1146, 1150, 67 L.Ed.2d 287, 293 (1981); 13 James Wm. Moore et al., Moore's Federal Practice § 68.02 (3d. Ed. 2002).
Moore et al., supra., note 3, § 68.04.
3. In this case, Mr. Johnson was included as a defendant on the basis of allegations in the complaint that he had signed Ms. Atkinson's driver's license application, that he owned the vehicle she was driving, and that she was less than eighteen years of age. An adult who signs a minor's license application or furnishes a vehicle to the minor is jointly and severally liable for any injury which the minor may cause. I infer from the record that he was dismissed from the action without consideration.
21 Del. C. § 6105, 6106.
If he in fact paid any financial settlement to the plaintiffs in exchange for dismissal, the plaintiffs should file a motion for reargument with facts relevant to that settlement.
4. The plaintiffs contend that an offer of settlement must be made by an adverse party; that when Mr. Johnson was dismissed he ceased being an adverse party and did not have standing to make an offer of judgment; that Ms. Atkinson did not thereafter make a separate offer of judgment when she alone was the adverse party; that there was, therefore, no offer of judgment outstanding at the time of trial; and that the motion for costs under that rule should, therefore, be denied.
5. Apart from the rule itself, the plaintiffs offer no authority for the argument they make. Since any judgment against both defendants would be joint and several for the same amount, it is logical that they would join in one offer of judgment. When ten days expired without acceptance, each defendant became entitled under Rule 68 to seek post-offer costs if the judgment obtained at trial was less than $15,000.00. When Mr. Johnson was dismissed from the suit, the unaccepted offer of judgment remained valid as to Ms. Atkinson. She was not required to renew the offer in her name alone to preserve her right to seek post-offer costs. Since Ms. Gerken obtained a judgment for less than the amount which Ms. Atkinson offered, Ms. Atkinson is entitled as against Ms. Gerken to costs which she incurred after the offer was made.
The Court notes that a defendant making an unapportioned offer to two or more plaintiffs, as was done here, risks denial of a Rule 68 motion for costs against any of those plaintiffs, even where the combined amount obtained against that defendant by all plaintiffs is less than the amount of the unapportioned offer, on the grounds that such an offer is ambiguous and that it is not possible to determine whether the offer is more or less favorable as to each plaintiff. Mulford v. Haas, 2001 Del. Super. LEXIS 172 (Del.Super.); Smith v. Santa Volpe, Inc., 1992 Del. Super. LEXIS 28 (Del. Super); Gavoni v. Dobbs House, Inc., 164 F.3d 1071 (7th Cir. 1999); Lintz v. American General Finance, Inc., 76 F. Supp.2d 1200 (Dist. Kan. 1999). The issue has not been raised here, and the Court is satisfied that since the amount obtained by Ms. Gerken was less than one-third of the amount offered, and she was the primary injured party, the judgment she obtained is not more favorable than the offer.
6. The defendant seeks reimbursement in the amount of $1,000.00 for the testimony of Dr. Robert Riederman, M.D. which was presented to the jury by videotaped deposition, and $717.35 for the transcript of that deposition which was marked as a defendant's exhibit for identification at trial. The Court has frequently used the 1995 study of the Delaware Medico-Legal Affairs Committee as a guide in assessing expert witness fees. The report advised that a reasonable range of fees for court appearances was from $1300 to $1800 per half day. The report further advised that for depositions a range of $500 to $900 for a two hour deposition was reasonable, with a $150 to $250 charge for each additional half hour. The Court notes that since 1994 the medical price index has grown by approximately 29% as of the end of 2001 according to the U.S. Bureau of Labor Statistics. The doctor's videotaped deposition was approximately two and one-half hours in length. After taking into account the 1995 report and the growth in the medical care price index since then, I find that the $1000 sought for the doctor's deposition testimony and the $717.35 for the transcript to create a record in lieu of his live appearance are reasonable and will be awarded as costs pursuant to Rule 68. The plaintiffs contend that the Court cannot determine whether the requested costs are reasonable without a breakdown or itemization of the amounts requested. The Court is satisfied, however, that no further breakdown is required in this case.
Sweren v. Sheehy, 2001Del. Super. LEXIS 541 (Del.Super.); Cunningham v. Outten, 2001 Del. Super. LEXIS 275 (Del.Super.); Lurch by Lurch v. Roberts, 2001 Del. Super. LEXIS 70 (Del.Super.); Gaur v. Arocho, 2001 Del. Super. LEXIS (Del.Super.); Zakrzewski v. Dailey, 2000 Del. Super LEXIS 502 (Del.Super.) Rowlands v. Lai, 2000 Del. Super. LEXIS 186 (Del.Super.); Bradshaw v. Trover, 1999 Del. Super. LEXIS 574 (Del.Super.); Clough v. Wal-Mart Stores, 1997 Del. Super. LEXIS 427 (Del.Super.).
7. Therefore, the defendant's motion for costs is granted.
IT IS SO ORDERED.