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[T] Elliott v. Birth2/3/2004
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Patrick Elliott, guardian ad litem for Brian Elliott, and Maria Elliott, hereafter referred to collectively as plaintiffs, filed suit against Shirley Birth (defendant) on 26 May 1998. Defendant filed an answer and demand for jury trial on 5 August 1998. Defendant filed an offer of judgment for $1,501.00 on 22 December 1998, which plaintiff Patrick Elliott rejected. Defendant also filed an offer of judgment for $2,001.00, which plaintiff Maria Elliott rejected. Prior to trial, defendant stipulated that her negligence was the proximate cause of the accident. The cases were consolidated and tried before a jury on 7 January 1999 only on the issue of the amount of damages. The jury returned a $350.00 verdict in favor of Patrick Elliott and a $1,000.00 verdict in favor of Maria Elliott. Plaintiffs filed motions to set aside the verdicts on the grounds they were inadequate and not supported by the evidence. The trial court granted the motions to set aside the verdicts. Following two subsequent appeals by defendant to this Court, we reversed the trial court and reinstated the jury verdicts.
Plaintiffs then filed motions for allowance of attorney's fees on 14 May 2002 and defendant filed a response to the motions on 2 July 2002. The trial court announced its decision to award attorney's fees to plaintiffs in open court on 12 July 2002. Defendant filed a motion for reconsideration and rehearing on 30 July 2002. The trial court entered an order on 31 July 2002 allowing plaintiffs' motions for attorney's fees. The trial court denied defendant's motion for reconsideration and rehearing in an order entered 4 September 2002. Defendant appeals the 31 July 2002 order and the 4 September 2002 order.
Brian Elliott, a minor child, and Maria Elliott were injured in a motor vehicle accident on 27 November 1997 in Wake County. Plaintiffs' attorney wrote a letter to defendant's liability carrier, Allstate Insurance Company (Allstate), on 30 December 1997, informing Allstate that he represented plaintiffs regarding the accident. Allstate received the letter on 31 December 1997, and a claims representative, Debra Gibbens (Ms. Gibbens), responded to the letter on 12 January 1998.
Plaintiffs' attorney acknowledged receipt of the 12 January 1998 letter on 14 April 1998 and forwarded plaintiffs' medical records and bills and a demand for settlement for Maria Elliott in the amount of $4,000.00. Ms. Gibbens completed her evaluation of the settlement packages for each claimant on 22 May 1998. Plaintiffs filed suit on 26 May 1998. Ms. Gibbens received settlement authority on 2 June 1998 for each claim arising out of the automobile accident.
"As a general rule, in the absence of some contractual obligation or statutory authority, attorney fees may not be recovered by the successful litigant as damages or a part of the court costs." Washington v. Horton, 132 N.C. App. 347, 349, 513 S.E.2d 331, 333 (1999). "However, N.C. Gen. Stat. § 6-21.1 (1999) 'creates an exception to the general rule that attorney's fees are not allowable as part of the costs in civil actions.'" Robinson v.Shue, 145 N.C. App. 60, 64, 550 S.E.2d 830, 833 (2001) (quoting Hill v. Jones, 26 N.C. App. 168, 169, 215 S.E.2d 168, 169, cert. denied, 288 N.C. 240, 217 S.E.2d 664 (1975)). N.C. Gen. Stat. § 6-21.1 (2003) provides that
n any personal injury or property damage suit, or suit against an insurance company under a policy issued by the defendant insu
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