 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Sowell v. Clark8/6/2002
. v. Town of Erwin, 128 N.C. App. 101, 109, 493 S.E.2d 797, 802 (1997), disc. review denied, 347 N.C. 670, 500 S.E.2d 84 (1998)(citations omitted). When determining whether to award attorney fees, the trial court must consider the entire record, including the following factors: (1) settlement offers made prior to institution of the action; (2) offers of judgment made pursuant to Rule 68 and whether the judgment finally obtained was more favorable than such offers; (3) whether defendant unjustly exercised superior bargaining power; (4) in a case of unwarranted refusal by an insurance company, the context in which the dispute arose; (5) the timing of settlement offers; and (6) the amounts of settlement offers as compared to jury verdict. Washington v. Horton, 132 N.C. App. 347, 351-52, 513 S.E.2d 331, 334-35 (1999). We now, in the aggregate, review these factors. There was no settlement offer made prior to the filing of the complaint. Defendant's offer of judgment pursuant to Rule 68 in the amount of $1,000 occurred when the answer was filed. Because the judgment finally obtained was $4,950 for damages and $5,445 in attorney fees, it was more favorable than the $1,000 offer of judgment.
Defendant next argues that because the total amount of the judgment, with interest, is $11,130.23, it is beyond the parameters of section 6-21.1. However, the statute provides that the "judgment for recovery of damages ten thousand dollars ($10,000) or less" to receive attorney fees. See N.C. Gen. Stat. ยง 6-21.1. Plaintiff's damages were $4,950 and her costs were $6,180.23.
Damages and costs are legally separate items. Damages comprise compensation for injuries through the negligence of another. Black's Law Dictionary 389 (6th ed. 1990). Costs are the expenses a party incurs for prosecuting or defending an action. Black's Law Dictionary 346 (6th ed. 1990). See also Perkins v. American Mut. Fire Ins. Co., 4 N.C. App. 466, 167 S.E.2d 93 (1969) (holding that generally, in absence of any contractual or statutory obligation, plaintiff's costs for his claim against defendant are not recoverable as item of damages, either in contract or tort action).
Accordingly, we hold that, as compared with the jury verdict, plaintiff's judgment finally obtained was within the parameters of section 6-21.1 and was more favorable than defendant's offer of judgment. The trial court did not abuse its discretion and we reject defendant's argument.
NO ERROR.
Judges WYNN and HUNTER concur.
|