*1 applicable to claims based on I.C. sis 54(e), Further, Rule 12-121 and analysis
given the Court’s fol- the same result would
Code 11(a)(1), and Code
low under Rule applicable. 12-128
The district court was within its discretion legal accordingly standards
and acted it, reliance as evidenced its above
Landvik v. Herbert.
VIII. ARE ATTORNEY FEES AWARDED
NO
ON APPEAL appeal pushes
This reasonableness articulated
brink. for the reasons those set forth in the district opinion, fees are awarded.
IX.
CONCLUSION is af- of the district court
The decision
firmed, including rulings its
THI costs. fees are is awarded No
awarded. TROUT, Justices
Chief
KTDWELL, and BURDICK EISMANN
concur. P.3d 514 GILLIHAN, as the Jean “DJ”
Deborah parent guardian of Celia
natural minor,
Gillihan, Plaintiff-Appellant, individually; Solveig GUMP, H.
Heidi L. I-V,
Lenhartzen, individually; and Does Defendants-Respon- parties,
unknown
dents.
No. 30164. Idaho,
Supreme Court of
Boise, February Term.
May 28, 2004.
Rehearing Denied June *2 Blanton,
Hall, Boise, Farley, Oberrecht & respondents. Raymond Powers ar- D. gued.
SCHROEDER, Justice. This case arises from prosecuted by appellant Deborah Jean (“Gillihan”) parent as natural Gillihan Gillihan, (“Ce- guardian of D. a minor Celia lia”) (Gillihan together Celia referred to against Gump “Appellants”), Heidi L. Solveig (together H. Lenhartzen referred to “Respondents”). case tried jury which fore a rendered verdict favor Respondents request who an award of granted by costs and fees which was Appeals the district court. The Court of affirmed the district court’s award of costs as of right matter but reversed the award of Respondents petitioned fees. The Appeals’ for review of the Court of decision granted question which was wheth- may er a personal injury actions under
I. AND FACTS PROCEDURAL HISTORY Gillihan, Celia, guardian of parent brought seeking damages this tort $25,000 injuries less than that Celia re- Respondents’ property. ceived when a plank occurred wooden cover- ing Respondents’ irrigation box broke stepped jury when Celia on Ait. trial result- finding parties ed in verdict that both negligent, assessing percent negli- gence to percent Respon- Celia and 10 dents. The district court entered Respondents. Subsequently, favor of the Respondents requesting filed a motion pursuant 12- 120(1). objected, arguing Gillihan that I.C. applicable inju- is not 12-120(4), ry actions and under I.C. only by pre- be recovered vailing in such actions. district granted Respondents’ motion and the amount of $26,135.50. Appeals The Court of reversed Offices, Boise, appellant. Litster Law the award on the basis that I.C. Dredge K. argued. recovery
Richard is the exclusive authorization for (90%) percent personal injury fees in actions un- of the amount awarded to $25,000.00. plaintiff.” der B. Standard Review
II. of a is an *3 THE AWARD OF ATTORNEY FEES of law over which the Court exercises issue free review. Idaho Fair v. Idaho Share Applicable A. Statute Comm’n, 959, Public Utilities 113 Idaho 961— 107, 62, (1988), depends upon 751 P.2d 109-10 overruled on resolution this case (1) (4) by grounds Simplot Co. v. Idaho J.R. and Sections Comm’n, 849, Tax 120 820 P.2d State Idaho following: provide 12-120 which (1991). primary function of the 1206 “(1) (3) Except provided as subsections Court is to determine effect and section, in any and of this action where George intent. Watkins Fami W. twenty-five is thou- pleaded amount 537, ly Messenger, 118 Idaho 797 ($25,000) less, sand dollars there (1990). 1385, P.2d 1387-88 Such intent prevailing be taxed and allowed reading be from a of the derived action, party, part of the costs of 539, act Id. at P.2d at whole at issue. 797 to be fixed the court reasonable amount statutory language If the is unam 1387-88. plaintiff to fees. For the expressed biguous, clearly intent of the “the fees, prosecution for the effect, legislative body and action, pay- for of the written demand no for a court consider there is occasion such claim must have been made ment of statutory Payette construction.” rules on the defendant not less ten Board Property River Owners Ass’n v. days ac- the commencement of the before 551, 132 Valley County, Comm’rs tion; provided, that no fees shall 557, 477, plain 483 976 P.2d plaintiff be allowed to the if the court finds prevail meaning of a statute will therefore plain- to the the defendant tendered expressed legislative is clearly unless tiff, of the prior to commencement contrary plain meaning or unless leads action, ninety- equal an amount at least Family, George absurd results. W. Watkins (95%) percent five the amount awarded 540, 118 P.2d at 1388. Idaho at ambiguous, is the de
When statute meaning termination of (4)In injury, where is a matter of law over application its also damages the amount of claim free Kel which this Court exercises review. thousand dol- does not Fund, Irwin, Insur. so P.A. v. State & lars there shall be taxed and (2000); 130, 134, 591, 997 P.2d J.R. claimant, allowed Heritage Ins. Simplot Co. v. Western action, reasonable amount to costs of 196, 582, 584, 977 132 Idaho P.2d the court as necessary interpret a for this it is Court For the to be awarded statute, attempt will to ascertain the Court action, writ- prosecution fees for intent, statute, construing claim and a ten demand for used, the reason examine been served statement of claim have interpretations, proposed ableness of the known, insurer, if if the defendant’s Ir policy the statute. Kelso & behind insurer, is no known then on the 134, win, P.A. 997 P.2d at at defendant, sixty not less than action; statutory construc Relevant rules the commencement of the before examine the Act the Court must fees shall be indicate making read the entirety, certain to the court finds its applying statu plain- provision in context defendant tendered to the provided. 72-102 tiff, tory See I.C. definitions prior commencement (“Words used in the worker’s com- equal ninety and terms an amount at least law, pensation equal unless the amount of the amount awarded context otherwise 90% requii’es, fees to be disal- are defined in the follow.”) requirement lowed rather than the 95% phrases Some terms and (4) modi- developed found in subsection specific meaning have or subtext (1) to the resulting fies subsection extent years judicial from of consistent “[tjhis provisions are inconsistent. This conclusion interpretation and Court assumes the fact supported Legislature knowledge has full of this exist- definitively prevent ing judicial interpretation, amends recovering from fees. The relevant Martinez, statute.” State v. 126 Idaho of the statute is as follows: 1063 (Ct.App.1995). The personal injuiy, Court has held that In actions for where the pre- “[t]he long sumed not to intend to overturn estab- *4 principles
lished law thousand dol- of unless an intention to by lars there shall be taxed and plainly appears express do so declaration claimant, to as the language employed the of the no admits other action, of a costs the reasonable amount to George Family construction.” W. Watkins by Messenger, the as plaintiff (1990). the to 1385, 1388 For be awarded action, prosecution the of the writ- ten demand for must have been C. Code a 12-120 creates ... served unique protocol plaintiff to the added). obtain fees in in- (emphasis Ap- The
jury $25,000. actions under pellants’ argument plaintiffs can only hinges interpretation of the Appellants argue The that it is clear synonymous the term “claimant” to be with from the of the statute that subsec “plaintiff.” logical reading A more of (1) tion injury does not prevail- is that “claimant” to a refers second, (4) actions, only defendant) ing party (plaintiff claiming allows for a to be awarded to meeting fees in an action the other requirements statute. (1) Subsection following contains the lan- (4) “plaintiff’ used the term in subsection (3) guage, “Except provided as in subsections (1) modifying when subsection but it when (4) of Appellants this section ...” The right addressed the to an it used maintain these words mean that in a small term “claimant” which in context be (4) personal injury only ap- subsection plaintiff either a or defendant. plies, such, and as none of the only Allowing D. (1) regarding subsection “prevail- fees to the per- small ing party” applies injury such injury provide sonal actions would interpretation actions. This supported is not disincentive for to enter by plain meaning phrase “except into a reasonable settlement. plain meaning in.” The ap- indicates that it continues to subsection ply to the extent it is not supported inconsistent with modifier subsection specific provisions public policy. Respondents’ position subsection If the (4) changes parts accepted of subsec- were there would be no real incen- personal injury plaintiff the case is tive an accept unreasonable first, requires offer, action: it reasonable settlement because there must serve its statement of claim not less no would be risk that fees would-be sixty days $25,000 than imposed. defendant’s insurer A could demand required rather than the ten in settlement no with incentive to be more (1); second, only requii’es subsection it pre- reasonable because defendant could plaintiff, the defendant tender to the vail still not obtain a for attor- prior ney to the commencement good an fees. The at bar example. case is a Except an appeals. affidavit of going trial tlement costs the defendant Representatives, injuries House though the a member of the significant even discussed, pur- which will be stated apparent In effort to avoid
were small.
an
remedy
pose of
subsection
expense,
Respondents offered the
$5,350
faced
defendants
small
difficulties
Appellants a settlement offer of
injury
prepare
case
generous
for the
appears to be a
day
period
ten
them subsection
relatively small
incurred
Celia and
intending
Rather than
to create an
the likelihood of
defense to
action.
person-
plaintiffs in small
fees safe harbor to
statutory interpretation asserted
Under the
actions,
al
stated
by Appellants, going
trial carried with
requirement
that a
intent was to create
consequences
Appellants
sixty days
notice
defendants
damages.
non-recovery
The risk
potential
merely
required
ten
rather than
as was
turning
carried
to them of
down
offer
fore
addition
subsection
itwith
a maximum loss of
Respondents
potential
cost to the
Representative’s
affidavit con-
F. The
either offer what
viewed as
unrea-
cerning legislative intent must be
sonably high
incur the
amount or
cost
disregarded.
Appellants
trial. Had
known that
going to
Appellants
the affida
offered
potential
charged
existed
Representa
of a member of
House
vit
case,
Respondents’
trying
costs
*5
interpretation of
support
for their
tives
may have
viewed
final settlement offer
been
However,
accepted
rule
the statute.
light.
in a more favorable
jurisdictions
of one
is that the beliefs
most
legislature
not
legislator do
establish
legislative history
E. The
does not indi-
express
something other than its
intended
legislature
cate the
intended
policy
this rule is
behind
declaration.
only plaintiffs
be allowed to be
case,
Oregon
Salem Keizer
well stated
fees in small
Employees v.
Keiz
Salem
Ass’n of Classified
actions.
24J,
19,
Or.App.
186
er School Dist.
history
legislative
It is not clear from the
(203):
970
legislature
intended
12-120 that the
First,
legis-
post-enactment statements
poten-
completely
from the
bar defendants
part of the record
lators are not
for an
fee award in
tial
Assembly
are considered
Legislative
it is
injury action under
ap-
contemporaneous “history” that
clearly
intended to
that the
stated
See, e.g.,
consult.
propriate for courts to
provide additional
time
defendants
214,
Resor,
216
Epstein
F.Supp.
296
Minutes,
a case. See
Senate Judi-
evaluate
(9th
(N.D.Ca.1969), aff'd,
H.B. No. 53rd added). legislator represents the views— individual (emphasis Nowhere Session—1996 or, accurately, recollec- perhaps more does in the recorded legisla- single participant policy tions —of consider- contain discussion process. Even when statements specifical- tive Appellants, ations asserted during are offered legislators individual ly, that the statute is intended commonly process, are the enactment only to consider set- pressure on defendants
269
432, 435,
cautiously
901
1336
viewed
as evidence of the inten-
127 Idaho
P.2d
See,
(examining
such
stat-
assembly.
e.g.,
tions of the
factors
as the
entire
O’Brien,
pro-
language,
Davis v.
320 Or.
891 ute’s
the reasonableness of
(1995) (“isolated
policy underly-
posed interpretation,
P.2d
and the
statements
statute).
necessarily
ing
made in committee are not
in-
legisla-
dicative of
the entire
specifical-
ture”).
loath
Courts are all the
more
ly
injury,
states “an action for
the intentions of
determine
the institution
where the amount of
claim for
as a
whole
the basis of
state-
isolated
thou-
enactment,
generated
ments
are
after
sand
and al-
taxed
without
evidence that the
mem-
...
lowed to the claimant
fees.”
legislative body
bers of the
even were
added.)
(Emphasis
them,
they agreed
aware of
much less that
Code 12-120 further states that a
See,
Regional
e.g.,
them.
Reor
Rail
fees,
order to be awarded
ganization
Cases,
102, 132,
Act
419 U.S.
make
written demand
335, 42
(post-
S.Ct.
L.Ed.2d
underlying
claim and
furnish
state-
enactment
of legislators “rep-
statements
underlying
sixty
pri-
ment of the
resent
of these
views
filing
or to
or the
defendant’s insurer
legislators,
since the statements were
defendant if the insurer is not
known.
act.”)
passage
[made] after the
of claim in
mention
Id. at 975. The Court will not consider the
plaintiffs prerequisite
as to the
presented by
Appellants.
affidavit
allowing
fee award. How can
interpreted
anything
“claimant” be
oth-
III.
plaintiff?
er
CONCLUSION
Significantly,
paragraph
the last
of subsec
awarding
decision
the district court
provides
that a claimant
who wishes
*6
attorney fees is
The Respondents
affirmed.
attorney
ask for
fees
this
section
under
code
are awarded costs.
give up
rights
Idaho
valuable
under
15(a) concerning
Rule of Civil Procedure
the
TROUT,
Chief Justice
concurs in the
amendment of his cause
action. The stat
result.
ute
“If
specifically,
states
the
in
complaint
cludes in the
filed to commence the
KIDWELL,
Justice
concurs.
trial,
or in
at
a
evidence offered
differ
BURDICK,
Dissenting.
injury
alleged
significant
ent
or a
item of
new
respectfully
I
majority
from
damage
dissent
the
set
not
forth in the statement of
opinion
upon
plain
claim,
based
a
reading of the
shall be
to have
deemed
statutory language
legislative
any
well
waived
un
entitlement to
fees
§
of I.C.
In interpreting
12-120.
a
this
der
section.” This
new
statute,
plain
adopted
this Court looks first
to the
subsection
new
meaning
to
see if
is an
It
plain
there
enacted in 1996.1
is
to see from the
ambiguity.
Mfg.
plain
§
Jen-Rath Co. Inc. v. Kit
1996 addition
I.C.
12-120 that the
gave up significant rights
Idaho
cific intent in the claim that take order significant It enactment of subsection allow cause is very quickly of action be framed in the 1996 amendment which took (1), period is and to a reasonable cases out of subsection there companies absolutely sixty days concerning insurance time of for no comment defen- (who specifically are or mentioned sub- dant’s counterclaim what defendant section) claimants, and their do to be expedited It then settle these matters is obvious from this exclu- subsection defendants, basis. sion of the excluding knew that it was the defendants very I important also to note the believe operation of subsection Cer- from in 1996. The title of title of bill enacted years delineating tainly, twenty-plus that bill is as follows: what the and TO ATTORNEY AN ACT RELATING required what to do the defendants FEES IN CIVIL ACTIONS: AMEND- section, prevail code the lack of under this CODE, ING SECTION IDAHO any mention “the defendant” subsection DIFFERENT TO PROVIDE A PRO- (4) nois mistake. THE CESS FOR AWARD OF ATTOR- point Idaho Rule of Civil I would also IN PER- NEY FEES ACTIONS FOR 3(a), a civil action is Procedure which states MAKE A SONAL INJURY AND TO filing complaint of a commenced TECHNICAL CORRECTION. party filing designated same 1,§ p. ch. Laws, Session goes This section plain It is that the technical correction claim, controversy dispute indicate “no changing in from was the I.C. any state may be submitted “per “percent.” cent” to The title meant filing determination or without wholly process was a “different very plain It complaint ...” in actions for award 3(a) bring plaintiff pursuant may injury” process for not a “different against complaint. in a a claim fees to injuries.” Therefore, plain language § 12- finding 120 necessitates district important original It is note the court could initially, passed 12-120 was $25,000; injury action for under applied that code section to “... intent, only plain- by the clear wrong for an if he award- tiff *7 both, person of another ...” property, or recovery. should reverse This Court ed four Although amended times was court and remand with an order the district amendment, prior in favor of the an fee award to enter personal property ac had never divided the 54(e). plaintiff, pursuant actions, until tions from the Again 1996. this shows the EISMANN, Concurring in Dissent. I stand alone. in 12- point to the would dissent, and I concur in Justice Burdick’s 120(1) says, “[ejxcept provided in which information re- to add additional write ...” for section legislative intent. garding the that I.C. proposition currently that “there states of the statute 12- independent stand alone and to the claimant shall be taxed and allowed 120(1). fixed ... a reasonable The issue is what fees.” Throughout by the word “claim- legislature intended always has been a delineation between refer either to ant.” The word could must take which actions damages person who had claim recover pleads a counter- actions a defendant who § 1, 91. Laws, 2. 1970 Idaho Session ch. p. person who has a claim recover latter, it means the then it party. prevailing
would be the same as the I provides
know of no statute in Idaho that losing party award of fees to the litigation. initially When this statute was house,
introduced
“there shall be taxed and
prevailing party ... a reasonable amount to the court as fees.” It change “pre- the house to amended
vailing party” to “claimant.” I assume that change wording intended cause change Therefore, meaning. it seems probable
most to me that claimant means the
person who has a of action cause person
rather who has a prevailing party fees as the
litigation.
STATE Plaintiff-Respondent, DOE, Defendant-Appellant.
John
No. 29237.
Supreme Idaho, Court of
Boise, February 2004 Term.
May