NO. COA02-361
Appeal by defendant from judgment filed 26 October 2001 by
Judge James R. Vosburgh in Camden County Superior Court. Heard in
the Court of Appeals 30 December 2002.
D. Keith Teague, P.A., by Danny Glover, Jr., for plaintiff
appellee.
Hornthal, Riley, Ellis & Maland, L.L.P., by Donald C.
Prentiss, for defendant appellant.
GREENE, Judge.
Kelly Ann Cartwright (Defendant) appeals a judgment filed 26
October 2001 ordering her to pay Joseph M. Gurganus (Plaintiff)
damages, costs, and attorney's fees.
On 19 April 2000, Plaintiff brought suit against Defendant
seeking damages for injuries sustained in an automobile accident on
Highway 158 in Camden, North Carolina, when Defendant rear-ended
the vehicle in which Plaintiff was a passenger. A year after the
lawsuit was filed, Defendant, on 5 April 2001, tendered an offer of
judgment in the amount of $5,111.86 plus all accrued costs up tothe time of the offer. Two weeks later, Defendant made an informal
offer to settle the entire claim for $6,720.00 but noted that any
attempt to mediate would be a waste of time. No settlement
agreement was reached between the parties.
On 24 October 2001, a jury awarded Plaintiff $5,217.00 in
damages. Plaintiff, by verified motion filed 25 October 2001,
moved to recover costs and attorney's fees from Defendant pursuant
to N.C. Gen. Stat. § 6-21.1. The motion and the attachments
thereto set forth that, prior to the initiation of this lawsuit,
Plaintiff had attempted to settle his claim with Defendant's
insurer but was advised the insurer “would never pay more than
$1,000.00.” Furthermore, after Plaintiff's attorney sent
Defendant's insurer a settlement package including $4,556.40 in
medical bills and $5,200.00 in loss of income, Plaintiff was told
the insurer was not willing to offer “'much of anything'” because
Plaintiff was “'a crook.'”
The trial court allowed Plaintiff's motion and, on 26 October
2001, entered judgment awarding Plaintiff $5,862.50 in attorney's
fees and $1,139.00 in costs.
__________________________
The dispositive issue is whether, based on the evidence in the
record, the trial court properly considered and applied the factors
outlined in
Washington v. Horton, 132 N.C. App. 347, 513 S.E.2d 331
(1999).
In a personal injury action where the plaintiff recovers
damages of $10,000.00 or less, the trial court may allow reasonableattorney's fees as part of the costs taxed against the defendant.
N.C.G.S. § 6-21.1 (2001). An award of attorney's fees under
section 6-21.1 is reviewed for abuse of discretion and will be
reversed only when it is completely arbitrary or “'manifestly
unsupported by reason.'”
See Davis v. Kelly, 147 N.C. App. 102,
106, 554 S.E.2d 402, 405 (2001) (quoting
Blackmon v. Bumgardner,
135 N.C. App. 125, 130, 519 S.E.2d 335, 338 (1999)). In exercising
its discretion, the trial court must enter findings, based on the
entire record, as to the following factors:
(1) settlement offers made prior to the
institution of the action . . . ; (2) offers
of judgment pursuant to Rule 68, and whether
the “judgment finally obtained” was more
favorable than such offers; (3) whether
defendant unjustly exercised “superior
bargaining power”; (4) in the case of an
unwarranted refusal by an insurance company,
the “context in which the dispute arose”
(See footnote 1)
; (5)
the timing of settlement offers; [and] (6) the
amounts of the settlement offers as compared
to the jury verdict . . . .
Washington, 132 N.C. App. at 351, 513 S.E.2d at 334-35 (citations
omitted). Although the trial court's findings, supported by
competent evidence, must be sufficient to allow for meaningful
appellate review, detailed findings as to each factor are not
necessary.
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. § 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 timing and amount of the parties' settlement offers both prior
to and throughout the litigation. Although Defendant avers the
trial court refused to consider her insurer's $6,720.00 settlement
offer on the ground that it was not a formal offer of judgment
under Rule 68, the trial court's written findings contradict her
claim. The trial court found Defendant's insurer made a $6,720.00
settlement offer on 19 April 2001 and reiterated the offer by
letter dated 5 October 2001 in response to Plaintiff's 25 September
2001 settlement offer of $8,700.00. The trial court noted
Defendant's offer of $6,720.00 expressly foreclosed any additional
recovery for pre-judgment interest, costs, and fees. The trial
court further found that Defendant's insurer withdrew the offer
seven days before trial on 15 October 2001. Accordingly, the trial
court fully considered the timing of Defendant's settlement offers.
V
Comparison of Settlement Offer with Jury Verdict
Finally, Defendant asserts the trial court failed to compare
the settlement offers to the jury verdict as required by the sixth
Washington factor. Because the trial court entered a finding
reflecting the jury's verdict of $5,217.00 and also engaged in a
full consideration of the parties' settlement offers, we reject
this argument as well. See Davis, 147 N.C. App. at 108, 554 S.E.2d
at 406 (“[i]t is clear from the [trial] court's findings of fact
that it considered the amount of the settlement offer as compared
to the jury verdict since the court cited the settlement offer and
jury verdict within the findings”).
Conclusion
As illustrated above, the trial court's detailed findings
demonstrate its review of the entire record in accordance with
Washington. Defendant's contention that the trial court merely
recited the Washington factors without applying them is therefore
without merit.
Affirmed.
Judges TIMMONS-GOODSON and TYSON concur.
Report per Rule 30(e).
Footnote: 1