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Cox v. Mulligan11/22/2005
2005 Opinion No. 111
The order of the district court is reversed.
This is an appeal from the district court's refusal to award the prevailing plaintiff attorney fees pursuant to Idaho Code § 12-120(4). We reverse the district court and award attorney fees on appeal.
I. ANALYSIS
While driving a car owned by Charles Cates, Valorie Mulligan collided with the rear of Lloyd Cox's car, injuring him. He sued Ms. Mulligan and Mr. Cates, and the jury awarded him $2,287.05 in special damages and $6,000.00 in general damages, for a total award of $8,287.05. Following the jury trial, Cox requested an award of attorney fees pursuant to Idaho Code § 12-120(4). The district court denied the award because Cox did not include in his complaint an allegation that his damages did not exceed $25,000. In his complaint, he sought " pecial damages of $2,640.61 and such further amount as may be proved at trial" and " eneral damages as proved at trial." We reverse because Idaho Code § 12-120(4) does not require that plaintiff plead damages of $25,000.00 or less.
In denying the award of attorney fees, the district court relied upon Cox v. Mueller, 125 Idaho 734, 874 P.2d 545 (1994). In that case we reconciled Idaho Code § 12-120(1), which permitted an award of attorney fees where "the amount pleaded" was $25,000 or less, and Idaho Code § 5-335, which prohibited pleading the specific amount of damages claimed in a personal injury action. We held that although § 5-335 prohibited alleging a specific dollar amount as damages, a plaintiff could comply with § 12-120(1) by alleging that the damages sought were $25,000 or less. We upheld the denial of attorney fees in Cox v. Mueller because the plaintiff had simply requested an award of special and general damages without also alleging that the damages sought did not exceed $25,000. Cox v. Mueller does not apply to the instant case, however, because this case involves subsection (4) of Idaho Code § 12-120, not subsection (1).
Subsection (1) applies "in any action where the amount pleaded is twenty-five thousand dollars ($25,000) or less." Subsection (4) applies "where the amount of plaintiff's claim for damages does not exceed twenty-five thousand dollars ($25,000)." The pleading requirement of subsection (1) would apply to subsection (4) only if the phrase "the amount of plaintiff's claim for damages" is synonymous with the phrase "the amount pleaded." An examination of subsection (4) shows that it is not.
For the plaintiff to be awarded attorney fees under subsection (4), a "written demand for payment of the claim and a statement of claim must have been served on the defendant's insurer, if known, or if there is no known insurer, then on the defendant, not less than sixty (60) days before the commencement of the action." (Emphasis added). An action is commenced by the filing of a complaint. Driver v. SI Corp., 139 Idaho 423, 80 P.3d 1024 (2003). Therefore, the "written demand for payment of the claim" cannot refer to anything that is pled in the complaint.
Subsection (4) only applies where "the amount of plaintiff's claim for damages does not exceed twenty-five thousand dollars ($25,000)." The statement of claim served at least sixty days before the lawsuit is filed must include " n itemized statement of each and every item of damage claimed by the plaintiff including the amount claimed for general damages and [five specific] items of special damages." (Emphasis added). These references to the "item of damage claimed" and "amount claimed" or general and special damages show that the "amount of plaintiff's claim for damages" is the amount set forth in the statement of claim, not the amount pl
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