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Hibbard v. McGraw12/5/2003
Amanda Carr, by her mother and guardian, Faith Carr Hibbard, appeals from a final judgment in favor of the defendants in a personal injury action and an award of attorney's fees to the defendants based on their unaccepted proposal to settle the case. Carr raises numerous issues on appeal, only two of which involve reversible error. We reverse the judgment awarding attorney's fees because the defendants' proposal for settlement was ambiguous and thus will not support an award of fees under the offer of judgment statute. We also reverse the judgment in favor of the defendants because damages were incorrectly calculated, as the defendants properly concede. In all other regards, we affirm.
The ambiguityin the proposal for settlement arises because of Carr's age, the manner in which this lawsuit was pursued and the language of the proposal itself. In August 1997, then sixteen year old Carr was a passenger in a pickup truck driven by her friend, Mark Brock. Carr and Brock were driving behind McGraw on a two-lane road in Jacksonville. McGraw proceeded slowly, so Brock drove into the left lane to pass him. Unfortunately, McGraw was in the process of making a left turn. To avoid hitting McGraw, Brock swerved and his truck went off the road, overturned and hit a tree. Carr, who was not wearing a seatbelt or shoulder harness, fractured her pelvis.
On March 5, 2001, the defendants tendered the following proposal to settle the case:
Defendants, MICHAEL McGRAW and DUAL INCORPORATED, by and through their undersigned counsel, hereby submit their proposal for settlement in favor of Plaintiff, AMANDA K. CARR, in the total sum of THIRTY FIVE THOUSAND AND ONE DOLLARS ($35,001.00), exclusive of attorneys' fees and costs, in exchange for an executed full release and voluntary dismissal with prejudice as to all claims against Defendants, MICHAEL McGRAW and DUAL INCORPORATED.
This Proposal for Settlement is for the alleged injuries and damages claimed by Plaintiff as a result of the accident which is the subject of this case.
About two weeks later, the defendants moved to amend the pleadings to show Carr as the "sole" plaintiff, since she was more than eighteen years old. The court did not rule on this motion until October 2001, about a month before trial. The court ordered that "Amanda Carr is an adult and shall appear on her own behalf as to her individual claims. Faith Carr Hibbard shall remain as a party Plaintiff as to her parental claim for general damages and claim for medical bills while Amanda Carr was a minor."
Prior to trial, Carr moved to strike the defendants' offer for settlement on the basis it did not specify the amount attributable to each plaintiff; i.e., to Carr and to her mother. The court rejected this argument ruling that the defendants were entitled to settle with one of the plaintiffs without regard to settling with the other.
At the November 13, 2001 trial, Brock and Carr, as well as McGraw and his passenger, testified to their recollections of the accident. Numerous experts testified for both sides.
The jury found Brock 70% negligent, Carr 25% negligent and McGraw 5% negligent and awarded the following damages.
Hibbard's economic damages for past medical expenses $104,766.44 Carr's economic damages for future medical expenses $100,000.00 Carr's past non-economic damages $100,000.00 Carr's future non-economic damages $50,000.00 Hibbard's loss of consortium $10,000.00
Total $364,766.44
Both sides moved for entry of final judgment in their favor. The defendants also moved for attorney's fees and costs based on their proposal for settlement.
The tria
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