Appeal by defendant from order dated 17 February 2003 by Judge
William C. Gore, Jr. in Brunswick County Superior Court. Heard in
the Court of Appeals 29 January 2004.
R. Clarke Speaks for plaintiff-appellees.
Hedrick & Morton, L.L.P., by B. Danforth Morton, for
Kenneth Eugene Hedrick (defendant) appeals an order filed 17
February 2003 awarding attorney's fees pursuant to N.C. Gen. Stat.
§ 6-21.1 to plaintiffs David Michael Moquin, Lynn Moquin (the
parents), and Elizabeth Moquin (the daughter).
On 15 August 2001, plaintiffs filed a negligence action
against defendant and NPC International, Inc. d/b/a Pizza Hut Store
No. 2578 for personal injuries sustained by the minor daughter in
a car accident and for medical expenses to compensate the parents.
Following a jury trial, the trial court entered judgment in favor
of plaintiffs, awarding the daughter $6,700.00 in compensation forher personal injuries and the parents $4,500.00 for medical
expenses related to their daughter's injuries. Subsequently, the
trial court, in an order filed 17 February 2003, awarded plaintiffs
attorney's fees under N.C. Gen. Stat. § 6-21.1 in the amount of
$5,000.00 for the representation of the daughter and $5,000.00 for
the representation of the parents, for a total of $10,000.00.
The sole issue on appeal, and one of first impression, is
whether the trial court erred in finding N.C. Gen. Stat. § 6-21.1
applicable where the combined recovery for damages under the
judgment exceeded $10,000.00.
Although awards for attorney's fees are commonly made under
section 6-21.1 and appealed, this Court has had little opportunity
in the past to construe the language of the statute itself. Our
Supreme Court has stated that for purposes of statutory
[T]his Court must first ascertain legislative
intent to assure that both the purpose and the
intent of the legislation are carried out. In
undertaking this task, we look first to the
language of the statute itself. When language
used in the statute is clear and unambiguous,
this Court must refrain from judicial
construction and accord words undefined in the
statute their plain and definite meaning.
Poole v. Miller
, 342 N.C. 349, 351, 464 S.E.2d 409, 410 (1995)
We thus begin our analysis with section 6-21.1, which
In any personal injury or property damage
suit, . . . upon a finding by the court that
there was an unwarranted refusal by the
defendant insurance company to pay the claimwhich 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
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
N.C.G.S. § 6-21.1 (2003) (emphasis added).
The obvious purpose of this statute is to
provide relief for a person who has sustained
injury or property damage in an amount so
small that, if he must pay his attorney out of
his recovery, he may well conclude that [it]
is not economically feasible to bring suit on
his claim. In such a situation the
Legislature apparently concluded that the
defendant, though at fault, would have an
unjustly superior bargaining power in
settlement negotiations. . . . This statute,
being remedial should be construed liberally
to accomplish the purpose of the Legislature
and to bring within it all cases fairly
falling within its intended scope.
Hicks v. Albertson
, 284 N.C. 236, 239, 200 S.E.2d 40, 42 (1973).
Both parties agree that this case turns on the definition of
the term judgment, which is undefined by the statute. In Poole
our Supreme Court, interpreting N.C. Gen. Stat. § 1A-1, Rule 68,
stated: Judgment means '[t]he final decision of the court
resolving the dispute and determining the rights and obligations of
the parties,' and '[t]he law's last word in a judicial
, 342 N.C. at 352, 464 S.E.2d at 411 (quoting
Black's Law Dictionary
841-42 (6th ed. 1990)) (alteration in
original) (emphasis omitted); see also
49 C.J.S. Judgments
§ 2, at
52 (1997) ([i]t has been held that a judgment is a confirmation
and formalization of a party's damage award indicating how much a
person has been injured). This definition, however, affordslittle guidance on how to interpret the legislative intent behind
the use of the word judgment in relation to recoveries by
Although defendant contends judgment for recovery of damages
under section 6-21.1 must be narrowly construed to mean the
combined, total recovery of the plaintiffs under the judgment in
any case, this reading of the statute is too simplistic and does
not comport with the plain language or the purpose behind the
statute. The application of section 6-21.1 is triggered by a
judgment for recovery of damages [that] is ten thousand dollars
($10,000) or less; however, a reading of the statute as a whole
reveals an additional emphasis on a party's status as the litigant
obtaining a judgment [for damages]. Mickens v. Robinson
, 103 N.C.
App. 52, 58, 404 S.E.2d 359, 363 (1991); N.C.G.S. § 6-21.1. This
focus on the judgment for recovery of damages in relation to the
individual litigant is consistent with the law on joint and
Section 6-21.1 uses the general heading of judgment without
differentiating between the subcategories of joint and several
judgments. A joint judgment is one that is shared by two or more
persons, Black's Law Dictionary
841 (7th ed. 1999) (defining
joint), and is entered in cases involving joint plaintiffs who
have brought a cause of action that is joint, 49 C.J.S. Judgments
§ 33, at 87. Vice versa, if the causes of action brought by the
plaintiffs are several, i.e. separate or distinct, Black's Law
1378, and have been either consolidated for trial or
joined under the North Carolina Rules of Civil Procedure, a trialcourt is required to enter a several judgment. 49 C.J.S. Judgments
§ 33, at 87 (a joint recovery on separate, several, and
independent causes of action in favor of separate plaintiffs is
improper); N.C.G.S. § 1A-1, Rules 19 and 20(a) (2003) (necessary
and permissive joinder of parties); N.C.G.S. § 1A-1, Rule 42(a)
(2003) (rules for consolidation).
By focusing on the judgment for recovery of damages with
respect to the litigant obtaining a judgment for damages, section
6-21.1 allows for the recognition of both types of judgments. When
a cause of action is joint, the parties represent a united front
sharing in the judgment and thus ultimately act as one, joint
litigant. In that case, the $10,000.00 maximum triggering
application of section 6-21.1 applies to the joint, total judgment
for damages by the plaintiffs. On the other hand, with respect to
several causes of action by plaintiffs in a consolidated or joint
suit, for which a several judgment is required, see
§ 33, at 87, the $10,000.00 maximum applies to each
several recovery of damages under the judgment.
(See footnote 1)
construction is consistent with the purpose behind the statute to
encourage parties with small claims for personal injury or propertydamage to bring those actions despite the cost of litigation and
the policy of this State to encourage parties to join or seek
consolidation with similarly situated parties to further reduce
their litigation costs and increase judicial economy. See Rhyne v.
, 149 N.C. App. 672, 687, 562 S.E.2d 82, 93 (2002)
(noting that [o]ur courts have encouraged parties to join in
lawsuits to better consolidate and facilitate cases and opposing
statutory construction that would discourage parties from joining).
To add separate damage awards under a several judgment for purposes
of determining the $10,000.00 maximum would have the effect of
punishing, through the denial of attorney's fees, those plaintiffs
who sought to join suit with other similarly situated individuals
instead of initiating numerous, individual low-recovery lawsuits.
We now consider whether plaintiffs' complaint states a joint
cause of action or several causes of action. In North Carolina,
two independent causes of action arise when an unemancipated minor
is injured through the negligence of another: (1) a claim on behalf
of the child for her losses caused by the injury, and (2) a claim
by the parent for loss of services during the child's minority and
for medical expenses to treat the injury. Bolkhir v. N.C. State
, 321 N.C. 706, 713, 365 S.E.2d 898, 902 (1988); Flippin v.
, 301 N.C. 108, 120, 270 S.E.2d 482, 490 (1980); West v.
, 120 N.C. App. 145, 150-51, 461 S.E.2d 1, 4 (1995); Brown v.
, 93 N.C. App. 453, 458, 378 S.E.2d 243, 246 (1989). The
parents' right of action is based upon their duty to care for and
maintain their child. Flippin
, 301 N.C. at 120, 270 S.E.2d at 490.
Accordingly, plaintiffs' causes of actions, one for personalinjuries to the daughter and one for medical expenses incurred by
the parents, must be categorized as several.
(See footnote 2)
See also Black's Law
1378 (defining several as separate; particular;
distinct). Under these circumstances, the judgment awarded by the
trial court was a several (separate) judgment, requiring the trial
court to consider each several (separate) recovery of damages under
the judgment by plaintiffs for purposes of determining whether
section 6-21.1 applied. Because plaintiffs' separate damage awards
were less than $10,000.00, application of section 6-21.1 was
triggered, and the trial court had the discretion to award
attorney's fees thereunder.
Judges TIMMONS-GOODSON and ELMORE concur.