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Ziemak v. Schnakenberg5/31/2005
Plaintiff/appellant Susan Ziemak appeals the trial court's award of attorney fees and costs in favor of defendant/appellee, Larry Schnakenberg. She maintains that the trial court erred when it denied her motion for additur and declined to include jury fees and prejudgment interest in her trial judgment which, as a result, fell short of exceeding her arbitration award by twenty-five percent pursuant to A.R.S. ยง 12-133(I) and Rule 76, Ariz. R. Civ. P., 16 A.R.S., Pt. 2. We hold that the trial court did not err when it declined to consider jury fees in that calculation, and we affirm the trial court's denial of Ziemak's motion for additur. However, we conclude that the trial court should have awarded Ziemak prejudgment interest and included that total in the judgment for the purposes of comparing the judgment to the arbitration award.
Factual and Procedural History
We construe the facts "in the light most favorable to upholding the jury's verdicts." Crackel v. Allstate Ins. Co., 208 Ariz. 252, 3, 92 P.3d 882, 885 (App. 2004). Schnakenberg began providing Ziemak with financial services and advice in the mid-1980s. In so doing, he acted as her health insurance agent, acquiring her first policy in 1992 or 1993. Rising premium costs prompted Ziemak to change insurance carriers a number of times; each time, Schnakenberg acted as her agent.
In July 2001, Ziemak received a letter from Conseco, her health insurance carrier at the time, notifying her that her coverage would end in February 2002. The letter also stated: "We encourage you to contact your agent for assistance in securing coverage through another carrier. Even if you have difficulty in obtaining replacement coverage, your agent is best suited to review the range of alternatives available to you at this time."
Ziemak testified that she gave the letter to Schnakenberg, who told her that he would "contact Conseco and get back to ." A few days later, according to Ziemak, Schnakenberg informed her that Conseco would not cancel her coverage until she acquired another policy. Ziemak and Schnakenberg then discussed other health insurance options, and Schnakenberg helped Ziemak apply for coverage with another carrier. However, the new carrier informed Ziemak that she would not be eligible for coverage until April or May 2002. She continued to make monthly premium payments to Conseco through February 2002.
That month, Ziemak was thrown from a horse. When she sought coverage for her injuries from Conseco, she discovered that Conseco had canceled her policy before the incident. She underwent knee surgery and her medical costs totaled over twenty thousand dollars. Ziemak ultimately paid $14,752.54 after negotiating with her various health care providers.
In August 2002, Ziemak filed a complaint against Schnakenberg, alleging negligence, breach of contract, negligent misrepresentation, and fraud. Most of the claims were substantively based on Schnakenberg's alleged statements that, until Ziemak secured alternative health insurance coverage, Conseco would not cancel her policy. She sought damages for her medical expenses, attorney fees and costs, and interest on any amount recovered for medical expenses.
The parties submitted the case for compulsory arbitration. Based on the uncontested facts presented at the arbitration, the arbitrator determined Schnakenberg had been fifty-five percent at fault and awarded Ziemak $7,370 in damages and $559.55 in costs.
Ziemak appealed from the arbitration award. After a two-day trial, the jury found Ziemak's "full damages" totaled $13,150.50 and that Schnakenberg had been seventy percent at fault, resulting in
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