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Gurganus v. Cartwright12/31/2002
ry. See Tew v. West, 143 N.C. App. 534, 537, 546 S.E.2d 183, 185 (2001); Fortune Ins. Co. v. Owens, 351 N.C. 424, 428, 526 S.E.2d 463, 466 (2000).
I. Settlement Offers Prior to Lawsuit
Defendant asserts several errors by the trial court in evaluating Plaintiff's fee request under the factors prescribed by Washington v. Horton. As one of her assignments of error, Defendant claims the trial court should have given "little weight" to the assertion that her insurer offered Plaintiff only $1,000.00 prior to the filing of the complaint.
In its discussion of the first factor of the Washington analysis, the trial court found Plaintiff sought a settlement, but Defendant's insurer "never offered to pay more than $1,000 to settle [Plaintiff's] claim" prior to this lawsuit. The trial court further found an adjuster for the insurer announced his intention to take a "'hard line'" with Plaintiff because he was "'a crook.'" Defendant claims the representations made by Plaintiff's counsel at the motion hearing regarding the pre-litigation settlement activity are insufficient to provide evidentiary support for the trial court's findings of fact. The record, however, also contains Plaintiff's verified motion for costs and fees, which sets forth the alleged pre-litigation statements of Defendant's insurance adjuster. Moreover, this Court has recognized the trial court's authority to consider the entire record, including the arguments of counsel, in exercising its discretion under N.C. Gen. Stat. ยง 6- 21.1. See Stilwell v. Gust, 148 N.C. App. 128, 132, 557 S.E.2d 627, 630 (2001), disc. review denied, 355 N.C. 500, 563 S.E.2d 191 (2002); see also Blackmon, 135 N.C. App. at 130, 519 S.E.2d at 338. Accordingly, the trial court's findings are supported by competentevidence.
II. Offers of Judgment
Defendant next asserts the evidence does not support the trial court's finding as to the second Washington factor because her offer of judgment of $5,111.86 plus accrued costs was only $105.14 less than the jury verdict and was thus a reasonable settlement offer that should have been accepted. We disagree.
The trial court found that, on 5 April 2001, Defendant made an offer of judgment in the amount of $5,111.86 plus all accrued costs. Based on the jury's damages award of $5,217.00 plus the $7,001.50 in costs and fees subsequently awarded under section 6- 21.1, the trial court properly found the judgment finally obtained was greater than the offer of judgment. See Roberts v. Swain, 353 N.C. 246, 250-51, 538 S.E.2d 566, 569 (2000).
III. Superior Bargaining Power
Defendant further excepts to the trial court's finding that her insurer had unjustly exercised superior bargaining power.
In addressing the third Washington factor, the trial court found Defendant and her insurer had "unjustly exercised 'superior bargaining power.'" The trial court noted the insurer's "hard line" pre-litigation posture, its position that mediation would be "a waste of time," its refusal to move beyond a $6,720.00 settlement offer in response to Plaintiff's offer of $8,720.00, and Defendant's denial of her negligence until 1 June 2001. In lightof the broad discretion enjoyed by the trial court, we cannot say the trial court erred in finding an exercise of superior bargaining power by the insurer based on these facts. Accordingly, this assignment of error is also overruled.
IV. Timing of Settlement Offers
As to the fifth Washington factor, Defendant argues the trial court failed to fully consider the timing of her settlement offers. We disagree.
The trial court in this case entered detailed findings as to the timin
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