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Schuff v. A.T. Klemens & Son12/27/2000
torneys' fees must be added to a plaintiff's recovery if the award is truly to make him whole is contrary to the generally applicable American Rule." Norfolk & Western Ry. Co. v. Liepelt (1980), 444 U.S. 490, 495, 100 S. Ct. 755, 758, 62 L. Ed. 2d 689.
On the other hand, those damages recoverable in a survival or wrongful death action based on the general tort law of Montana were summarized in Swanson v. Champion Int'l Corp. (1982), 197 Mont. 509, 646 P.2d 1166. There we held that:
The damages that may be recovered in the survival cause of action for the death of the decedent through tort include his lost earnings from the time of his injury to his death; the present value of his reasonable earnings during his life expectancy; the medical and funeral expenses incurred by him as a result of the tort; reasonable compensation for his pain and suffering, and other special damages. Swanson, 197 Mont. at 515, 646 P.2d at 1169 (citations omitted).
We held that in wrongful death actions:
Generally the proof of damages under this cause of action will include loss of consortium by a spouse . . . the loss of comfort and society of the decedent suffered by the surviving heirs; and the reasonable value of the contributions in money that the decedent would reasonably have made for the support, education, training, and care of the heirs during the respective life expectancies of the decedent and the survivors. Swanson, 197 Mont. at 517, 646 P.2d at 1170 (citation omitted).
Schuff contends that because the jury awarded damages in the amount of $1,303,000 that is the measure of full legal redress and if she is required to deduct attorney fees from that amount, she will be denied full legal redress. While it is true that following proper instructions regarding the damages recoverable at law a jury's verdict is the measure of full legal redress, it does not follow that a party required to pay attorney fees from that amount is denied full legal redress. As pointed out, attorney fees are not an element of damage. They are the subject of contract between a party and his or her attorney. Brytus v. Spang & Co. (3d Cir. 2000), 203 F.3d 238, 241. They are what a party chooses to do with his or her recovery after it is received based upon a prior arrangement. While the practical effect may be that Schuff recovers less than the full amount of her actual damages, she has not been denied something she is entitled to recover against third parties based on "the general tort law of this state."
For these reasons, we conclude that Article II, Section 16, of the Montana Constitution does not create a fundamental right to recover attorney fees. Therefore, we conclude that the District Court erred when it held that Klemens' right to offset for collateral source payments and contributions from joint tortfeasors is reduced by the amount of fees incurred by Schuff.
Issue 4.
Did the District Court err when it reduced the jury verdict pro tanto based on Schuff's prior settlement with the other named defendants?
On cross-appeal, Schuff argues that, aside from the constitutional question, the District Court erred when it offset the jury award by the amount she received in settlement with the other named defendants. Schuff primarily focusses on the equitable nature of such a "pro tanto" offset, and argues that under the specific facts of this case, Klemens is not entitled to any equitable reduction of the jury award entered against it. We disagree.
The District Court determined that Klemens was entitled to a pro tanto offset of the amounts Schuff received through her settlement, pursuant to this Court's decision i
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Montana Personal Injury Attorneys
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