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Furmick v. Miner12/3/2002
PUBLISHED
The issue for consideration in this appeal is whether the trial court erred in awarding attorney's fees, costs and prejudgment interest under N.C. Gen. Stat. § 6-21.1.
The jury returned an $812.11 verdict for plaintiff, Joseph Alan Furmick, upon his claim for personal injuries. Defendant, Gregory R. Miner, had earlier filed a $3,671.00 Offer of Judgment. The trial court nevertheless awarded plaintiff $6,500.00 in attorney's fees, $1,866.90 in costs and $81.20 in prejudgment interest.
Defendant appeals, arguing the trial court: (1) erred by failing to make adequate findings of fact; (2) abused its discretion in awarding fees in light of the amount of defendant's settlement offers as compared to the jury verdict; and (3) erred in awarding prejudgment interest.
We agree with defendant as to the inclusion of prejudgment interest, but otherwise affirm the trial court. We remand the case for the limited purpose of allowing the trial court to make a determination regarding attorney's fees for services performed on appeal.
On 10 April 1997, plaintiff was driving home from work when his vehicle was struck from behind by a vehicle operated by defendant. Plaintiff suffered lower back pain and as a result incurred medical bills totaling $600.56.
Approximately two weeks after the accident, J.J. Hoyer, a representative of defendant's liability insurance carrier, went to plaintiff's home and made a settlement offer. According to Hoyer, he offered to pay the total of plaintiff's medical expenses up to that date plus $1,000.00. Plaintiff does not deny an offer was made but does not remember the amount. In any event, plaintiff, who was still receiving medical treatment, refused the offer.
On 11 October 2000, after plaintiff instituted suit and mediation was unsuccessful, defendant filed an Offer of Judgment in the amount of $3,671.00. Plaintiff again declined to settle.
The case was tried before a jury on 4 and 5 December 2000.
By his first assignment of error, defendant contends the trial court erred in awarding fees and costs because it failed to make specific findings of fact. While the trial court made findings of fact concerning the reasonableness of the fees and costs, defendant argues it did not make required findings regarding whether an award was appropriate. We disagree.
Generally, the prevailing party is not entitled to recover attorney's fees as a part of court costs. Washington v. Horton, 132 N.C. App. 347, 349, 513 S.E.2d 331, 333 (1999). However, our legislature has provided for the recovery of attorney's fees in certain cases where the damage award is less than $10,000.00:
In any personal injury or property damage suit, or suit against an insurance company under a policy issued by the defendant insurance company and in which the insured or beneficiary is the plaintiff, upon a finding by the court that there was an unwarranted refusal by the defendant insurance company to pay the claim which constitutes the basis of such suit, instituted in a court of record, where the judgment for recovery of damages is ten thousand dollars ($10,000) or less, the presiding judge may, in his discretion, allow a reasonable attorney fee to the duly licensed attorney representing the litigant obtaining a judgment for damages in said suit, said attorney's fee to be taxed as a part of the court costs. N.C. Gen. Stat. § 6-21.1 (2001).
"The allowance of attorney fees is in the discretion of the presiding judge, and may be reversed only for abuse of discretion." Washington, 132 N.C. App. at 351, 513 S.E.2d at 334. Accordingly, to overturn the trial court's decision, i
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