Turner v. Willis
778 P.2d 804
Idaho
1989
Check Treatment

*1 аppraisal “injured day farm a lowed to make an an a tractor for several hours probable employee’s present and future between school bus runs. Claimant fur- gainful activity” and ability ther testified that he had free-lanced as a mechanic, rating ap just prior hearing, upon to the he base its evaluation and Co., replaсed praisal. engine Gray had removed and and bill v. See Swift 293, (1988). pickup arriving him- In transmission from his truck Idaho 766 P.2d 763 produced rating fifty-nine percent disability self. Claimant no evidence of the at its case, unavailability In suitable work. this the Commission considered fact, possibility surgery repair his evidence indicated otherwise. The of future arthroplasty. Consequently, Cоmmission found that claimant failed to total we con present odd-lot, prima a facie case of be- clude that the Industrial did Commission jobs readily entering cause “there are available in not err in a final without community retaining jurisdiction. claimant’s that claimant could perform his work restrictions.” within finding The Commission’s order supports The record the Commission’sfind- permanent disability fifty-nine claimant’s is ings, and the Industrial Commissiondetermi- percent supported by of the whole man is bring disability nation claimant’s did not competent substantial evidence and is af- him within the odd-lot doctrine is affirmed. firmed. 431, # Idaho Huerta v. District School (1989). 773 P.2d 1130 JOHNSON, BISTLINE and JJ. concur. argues In

Claimant next HUNTLEY, J., explicit fully concurred dustrial Commission failed to make decision, findings supрort resignation August to his of fact to its such, the case must as be remanded. Iver SHEPARD, J., sat but did not Farming, son v. untimely due to his death. (1982). case, In the instant the find substantial, ings of the Commission were

consisting approximately seventeen pages, explanation ‍‌‌‌​‌​‌​​‌​​‌‌​​‌​​‌​​​​‌‌​‌‌‌‌​​​​‌​‌​‌‌‌​​​​​‌‍and included a detailed employment

of claimant’s and medical background, experience, his skills and work personal age,

and his education and other findings factors. The fur Commission’s ther included the evaluations of all attend TURNER, individual, Leanne findings ing physicians. The of the Indus Plaintiff-Respondent, sufficiently specific trial Commission were adequate. WILLIS, individual, Douglas D. Farm, Inc., Egg an Idaho Willis argues Claimant further Defendants-Appellants. corporation, retaining jurisdiс erred in not commission tion, citing Reynolds Browning Ferris No. 17111. Industries, 113 Idaho Supreme Court of Idaho. disagree. Reynolds, We “In a situation where the Court stated: Aug. and, impairment progressive claimant’s therefore, adequately determined cannot be establishing permanent purposes of entirely appropriate

disability rating, it is jur to retain for the Industrial Commission the claimant’s until such time as isdiction However, nonprogressive.” condition is al- the Commission under I.C. *2 Blanton, Thomas,

Moffatt, Barrett & Ray- Boise, defendants-appellants. for argued. ‍‌‌‌​‌​‌​​‌​​‌‌​​‌​​‌​​​​‌‌​‌‌‌‌​​​​‌​‌​‌‌‌​​​​​‌‍Powers mond D. Sullivan, Hart, Langroise,

Holland Debra K. Boise, plaintiff-respondent. argued. Ellers BISTLINE, Justice. D. Douglas May of defendant Turner’s Leanne plaintiff

Willis rear-ended at a red stopped she was automobile while treat- hospitalized for light. was Plaintiff body. her neck injuries ment of the de- complaint against filed a Plaintiff fendants, employer, Willis and his Willis denying Farm, Inc., Egg who answered up un- maintaining that denial liability and answer, til the time of trial. Defendants’ moreover, the affirmative defense raised negli- contributing comparative causative plaintiff. Plаintiff gence part money of insurance and no had no medical pay her medical which to her own with lack resources of her bills. Because to treat her. physicians refused some pursued fell into debt and Plaintiff initi- Legal action was agencies. collection against her. ated given notice of were written Defendants obtaining paying plaintiff’s problems four On at least for medical treatment. plaintiff requested that defen- occasions necessary medical costs dur- pay dants her litigation. ing pendency of the Those ignored and defen- requests denied or were asserting compara- their persisted dants defense. negligence tive accident, May the time of the From April until the trial defen- discovery obviously dants’ established no supporting their claim facts contributing negligence, it was just prior to trial that the defendants ad- percent liability. mitted 100 five-day solely After a trial on the issue damages, jury returned a verdict for $91,500. On motion $30,500 the court awarded her $1,300 in discretionary costs for expert testimony physiciаn. of a On Sigdestad v. appeal vailing Second, party. citing defendants contend that the tri- Gold, (Ct.App. al court making abused its discretion 1984), the court found that the defendants those awards. *3 good to trial showed a lack of faith Third, negotiations.3 settlement the court I. ATTORNEY FEES liability really determined that was never The trial court attorney awarded Acсordingly, an issue. the district court pursuant fees to 12-1211 I.C. and I.R. plaintiff ruled that was entitled to an 54(e)(1).2 C.P. Attorney fees under attorney award fees. 12-121 discretionary is a award to the demonstrates, amply As footnote 3 54(e)(1) “prevailing party.” requires Rule Sigdestad, thought insofar as it was to finding a court that the nonprevailing party proposition good stand for the that lack of brought, pursued or defended the case negotiations proper faith settlement is a “frivolously, unreasonably, or without considering concern in a claim to an award foundation.” The trial court’s award of attorney plaintiff definitely has attorney fees will not be reversed absent a passed remaining now into oblivion. Here abuse of discretion. Decker v. manifest for our consideration is the trial court’s Homeguard Systems, 105 Idaho 158, 163, finding that the non-liability defendants’ Martin, Futrell v. (1983); 666 P.2d 1169 contention was not a viable issue. We ‍‌‌‌​‌​‌​​‌​​‌‌​​‌​​‌​​​​‌‌​‌‌‌‌​​​​‌​‌​‌‌‌​​​​​‌‍also 473, 479, (1979). 100 Idaho 600 P.2d 777 add that our own review the record The party disputing burden is on the the discloses no in basis law or fact for defen award to establish an abuse of disсretion. pleaded dants’ defense of con Anderson Ethington, v. 658, 103 Idaho tributing negligence. 660, (1982). 651 P.2d 925 argue Defendants that the trial court awarding attorney the trial court considering erred in frivolity the plaintiff first observed pre- comparative was the negligence defense as a basis provides: Bistline, J., 1. Idaho concurring opinion Code § 12-121 looked the 762, 763, action, Payne Foley, Attorney’s any v. 102 Idaho at fees.—In 639 P.2d civil the judge may (1982), attorney’s opinion award reasonable stated that the for prevailing party parties, provided the or the Court in effect held "that there is no authori- alter, repeal this section shall not oversee, or amend ty upon, in a trial court to insist or any provides statute which otherwise for the second-guess negotiations, any, if attorney’s award of fees. certainly authority impose no sanctions bargaining.” for bad faith 54(e)(1) pro- Idaho Rule of Civil Procedure But, hand, vides: logical on the other it is more Judge Attorney any nothing, assume that Burnett overlooked fees.—In civil action the court may the reasonаble fees to the drew "never could be considered” con- prevailing party parties singularly or as defined in Rule clusion from the obvious fact that 54(d)(1)(B), provided by any when for statute signi- none of the other members of the Court Provided, attorney Bistline, J., or contract. agreement fees under fied their as to the inter- 12-121, may section Idaho Code be awarded pretation of the Court's Two members finds, the court when it from the facts participated Payne of the Court who had v. it, presented brought, that the case was not, Foley, plus Justice Johnson who had did pursued frivolously, unreasonably Bistline, J., interpretation Payne endorse the defended foundation; or without but fees shall 27, 1988, Foley July opinion v. Coleman, in the in Ross v. pursuant not be awarded to section 114 Idaho judgment. (Empha- Idaho Code on a default years Payne 1188. But this was six after added). sis released, years Sigdestad. and also four after Anderson, year Kaufman, This in Anderson v. Appeals Sigdestad briefly 3. The Court of dis- Clark, Ringert & 116 Idaho Payne Foley, cussed this Court’s v. (1989), again quoted a unanimous Court (1982), saying 102 Idaho P.2d separately Payne which I it, Foley, wrote in ob- parties "... the court said that the had cited served what had been written in Ross v. Cole- legal authority allowing no award of man, and ruled that “Rossv. Coleman negotiate overruled fees for failure to ever, faith. How- Sigdestad Undoubtedly carefully saying Gold sub silentio." the court refrained from it effect, negotiations specifically had that overruling that settlement never could be con- evaluating preferable attorneys ques- would be the sidered in fees in method for the edifica- Appeals tion." The Court of have over- tion of the trial bench and bar. Here because, awarding attorney fees re- very She trial, little. day of it asked on thе first been withdrawn district hold significant impact nothing. We “had no ceived therefore giving considera- due pursued case was or was defend- court did not err how the refusal to make App. Brief In turn that con- ed.” at 13. tion defendants’ medical sum-certain hypothesis is based on advances on tention bills, especially given defendants’ belated “reаl” issue to be tried was the amount of damage liability. per- are not at all admission award. We argument. suaded on the the issue drawn Our review of re- us to has caused fees award frivolity and unreasonable *4 case, this but only Sigdestad view not the a defense is not to be examined ness of in v. Aid opinion Brinkman Court’s recent proceedings. only in the context of trial Co., Idaho Insurance litigation entire course of the will be The P.2d into It is clear that had the taken account. interposed not the sham de defendants Appeals opin- Sigdestad, In the Court of contributing negligence, plaintiff’s of fense of impression left that the award ion the damages might the issue of have been tried attorney triаl by fees the court was based During and determined much sooner. the contingent arrangement on a one-third fee defense, by delay caused the sham on at However, plaintiff. examina- with our occasions, requested least four appeal Sigdestad tion of the record dis- pay her medical that defendants bills. attorney closes distriсt court’s fees that the requests fell ears. In our These on deaf $19,269 of award was claimed on the basis court, the district in its decision view as attorneys’ hourly billing, of the at the vari- requested attorney did not err in con attorneys customarily rates plaintiff’s ous sidering refusal defendants’ advance charged, and in form. documented affidavit farthing one medi еven toward noting, Appeals simply The was Court of asking cal Plaintiff not bills. was aside, $19,269 apparently as an her general damages, advance on claimed Sig- of approximately award was one-third sought help financial on her in judgment. destad’s leg curred sum-certain medical bills. The may Similarly, be some confusion there islature, anticipаtion of circumstances as as to whether the affirmed Brinkman present, provided statutory are here has attorney fees not was or was prepay mechanism to medical bills without contingent arrangement. fee on a based liability. admission Under opinion equal “An Our states: amount pay- 41-1840 a defendant advance contingent locale standard the same bodily upon injury, ments for settle- clearly not an that is erroneous. amount judgment, or are ment such sums credited $52,000 The fact is the awarded was what against ultimately amount which attorney actually costs were.” Brinkman’s purpose The of this statute is to owed. appellate record A reexamination of encourage and their tort-feasors insurers establishes that hardship Brinkman to alleviate financial inflicted on case, 477.6 hours on that worked accident victims without fear according present- proper documentation being prepayments evidence introduced Inc., post-trial hearing. to the court at a Tommerup ed trial at trial. v. Albertson’s damages, indemnity provides: insurer or benefits Code Idaho 41-1840 death, arising injury, out of such loss or dam- (1) payment Prepayment No or of claims. — age pleaded as a defense to the action. unless payments by any person, made in- or his (2) payments be credited All such shall policy, virtue surer of an insurance upon any respect with to the same damage bodily injury or account of or death another, damage, judg- expense by, loss or made or property to or loss of shall consti- rendered such an liability ment or ward therefor in or waiver of tute admission death, insurer, against, payor injury, action or his and in as to loss dam- defense age, such or any person favor on whose bе evidence in ac- whom or or admissible in against brought injured person payment was his account made. tion $52,000 Appellants award of fees in ties. are awarded their costs on equaled approximately per appeal. Brinkman $108

hour. J., JOHNSON, concurs. case, plaintiffs attorneys’ time equals was 203.6 hours. The fee award HUNTLEY, J., fully concurred hour, approximately per $150 resignation August to his However, not claimed be excessive.5 principles require of stare decisis that we SHEPARD, J., sat, but did not awarding attorney vacate the order opinion in this due to his and remand that issue to the trial ‍‌‌‌​‌​‌​​‌​​‌‌​​‌​​‌​​​​‌‌​‌‌‌‌​​​​‌​‌​‌‌‌​​​​​‌‍court for untimely death. light reconsideration of our decision in BAKES, Justice, concurring specially: Colеman, Ross v. I operative part 1188: “The district court concur in the erred imposed when it costs Court’s fees for the order which “vacate[s] awarding failure to faith settlement fees and remand[s] negotiations, accordingly the order issue to the trial court for reconsideration *5 light Coleman, must be reversed for of our that reason.” decision Ross v. 114 Idaho 761 P.2d II. DISCRETIONARY COSTS [(1988)]....” Ante at 778 P.2d at 808. Ross v. Coleman held that the dis- plain- The district court awarded $1300 trict court should not consider whether a recovery physi- tiff for of the costs of a party failed to faith settle- expert testimony. cian’s Generally, expert negotiations ment in determining whether witness are limited to I.R.C.P. $500. impose costs and fees under 54(d)(l)(C)(8). However, whеre such costs I.R.C.P. 54. See also Anderson necessary exceptional, are the trial Anderson, Clark, Kaufman, Ringert & discretion, may, court in its assess addition- 116 Idaho 54(d)(1)(D). al fees. I.R.C.P. See also R.T. Hulet, Nahas 106 Idaho Co. I majority’s further concur in the conclu- (Ct.App.1984). raising contributory neg- sion that the of a ligence defense, when there was no factual Wе conclude that the awarded costs asserting defense, grounds basis for that is provided by over and above that the Rule asserting attorney fees under I.C. 54(d)(l)(C)(8) Nothing cannot stand. in the 12-121, 54(e)(1) and I.R.C.P. for the at- § record demonstrates that was re $1300 torney meeting fees incurred in such a quired testimony in order to obtain the foundationless defense. plaintiff’s physiciаn. physician That the charged I provided by more than the further concur in Part II of the $500 Court’s the rule is insufficient in and of itself to higher Accordingly,

allow costs for a fee. However, I part cannot concur we hold in this case that is entitled majority opinion suggests provided to recover fee $500 “defendants’ refusal to advance even one 54(d)(l)(C)(8). Rule farthing toward medical bills” is part, part, determining Affirmed reversed in relevant whether or not the frivolously, remanded with directions to amend down- case was defended unreason- allowing discretionary ably ward the order costs or without foundation under Rule 54(e)(1). and to reconsider the award of fact per- that I.C. 41-1840 § extending any fees without consideration ‍‌‌‌​‌​‌​​‌​​‌‌​​‌​​‌​​​​‌‌​‌‌‌‌​​​​‌​‌​‌‌‌​​​​​‌‍mits a defendant payments to advance negotiations par- admitting liability of the without or without waiv- holding agreement always 5. While we adhere to our in Brinkman does not reflect the time and contingent litigating award near the standard fee effort involved in a civil case. necessarily inappropriate, contingent level 346, charge may is not some instances the fee (1989), hourly billing, we note that the exceed in other cases it fall contingency amount due an under a far short. a conclu- ing defense not authorize a does or should be that such a defendant can

sion attorney fees penalized the award plaintiffs advancing portion a not suggestion only fur- damages. This will complicate ther the award of 54(e)(1), I.C. 12-121 and a under I.R.C.P. requires often a sec- procedure which now Determining trial after the first one. ond damages sufficiently an item of when require adequately established as to part to tender that of the dam- defendant pain pay the other ages under proving party’s attorney fees allocable required by not particular item is authority, legal other Certainly, my knowledge. majority authority proposi- opinion cites for that no suggestion in tion. The the Court’s complicate greatly erroneous and will already problem. difficult *6 P.2d 809 EDWARDS, Plaintiff-Appellant,

Elaine Donart, Sally James DONART hus- wife, band and Defendants-Respondents. Schlender, Hailey, plaintiff-ap- E. Leе No. 17596. pellant. Smith, Goss, Falls, Twin Beeks Supreme Court of Idaho. defendants-respondents. Paul Beeks M. Aug. argued.

PER CURIAM.1

I.

Elaine Edwards sued the Donarts for personal injuries resulting from a fall at County. the Donarts’ residence in Blaine Following case went trial. Ed- chief, wards’ case the Donarts moved for a directed verdict which the court denied. HUNTLEY, SHEPARD, J., sat, J., resigned participated from but did not untimely was reached the Court before consensus due to his death. is reflected in our