DEAN-SEENEY v. STATE FARM MUTUAL AUTO., 04C-01-105-CLS (Del.Ch. 4-19-2007)

EVA DEAN-SEENEY, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.

No. 04C-01-105-CLS.Superior Court of Delaware, New Castle County.Date Submitted: April 5, 2007.
Date Decided: April 19, 2007.

Upon Plaintiff’s Motion for Costs GRANTED in the sum of $4,239.

Beverly L. Bove, Esquire, Wilmington, Delaware, Attorney for Plaintiff.

Gerald J. Hager, Esquire, Wilmington, Delaware, Attorney for Defendant.

ORDER
SCOTT, J.

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1. Plaintiff Eva Dean-Seeney (“Plaintiff”) has filed a Motion for Costs pursuant to Superior Court Civil Rule 54 and 6 Del. C. § 2301(d). Plaintiff asks for reimbursement of costs from Defendant State Farm (“Defendant”). Upon a review of this Motion, the Court concludes that it should be GRANTED in the amount of $4,230. This sum reflects the fees already remitted by Defendant.

2. The Motion for Costs at hand arises from an uninsured motorist case tried before the Court on March 19, 2007. Prior to trial, a series of settlement offers took place between the parties.

Plaintiff first sent a letter directly addressed to Defendant State Farm on January 4, 2007, asking Defendant to resolve the case at hand for the $100,000 policy limit.[1] The Court ordered mediation subsequently took place on January 25, 2007. At mediation, Defendant verbally made a settlement offer of $15,000, and Plaintiff verbally decreased her offer to $85,000. Following the unsuccessful mediation, Plaintiff lowered her demand to $75,000 in a letter dated March 5, 2007.[2] Finally, the trial commenced on March 19, 2007, and on March 21, the jury returned a verdict in favor of Plaintiff for $100,000.

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Plaintiff filed a Motion for Costs on March 30, 2007, and Defendant filed a response to this Motion on April 5, 2007. Plaintiffs, as the prevailing party, have requested reimbursement for the following:

(1) Superior Court electronic filing fee in the amount of $184.00.
(2) Sheriff fee in the amount of $30.00.
(3) Insurance Commissioner service fee in the amount of $25.00.
(4) Mediation fee in the amount of $150.00.
(5) Expert Testimony by Dr. Demetrio Zerefos, D.O. in the amount of $3,000.00.
(6) Expert Testimony by Dr. Kishor Patil, M.D. in the amount of $2,500.00.

In response to Plaintiff’s requests for reimbursement of these costs, Defendant specifically contests the Superior Court electronic filing fee, the mediation fee, the expert fees and the prejudgment interest. Defendant states that it has already made payment to Plaintiff in the amount of $4,320, thereby, accounting for the following expenses:

(1) Superior Court filing fee in the amount of $175.
(2) Sheriff fee in the amount of $30.
(3) Insurance Commissioner Service fee in the amount of $25.
(4) Expert fee for Dr. Zerefos in the amount of $2,000.

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(5) Expert fee for Dr. Patel in the amount of $2,000.[3]

As to the Superior Court filing fee, Defendant contends that Plaintiff unnecessarily spent nine dollars extra in order to use electronic filing. Plaintiff filed the Complaint at a time when the Court only required electronic filing for non-arbitration cases over $100,000.[4]
Defendant alleges that, “Plaintiff filed this case as a non-arbitration case, certifying that the case was more than $100,000, even though she knew there was only $100,000 worth of uninsured motorist coverage on her policy.”[5]

With regard to the mediation fees, Defendant asserts that the Superior Court Rules do not entitle Plaintiff to the costs of mediation. Also, as to the expert testimony fees, Defendant argues that the bills submitted by Plaintiff “are excessive, given the amount of time they testified.”[6] Plaintiff argues, however, that the $3,000 fee for Dr. Zerefos is “reasonable and customary for a half a days trial time” for which he traveled 12 miles and canceled

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appointments with approximately 25 patients.[7] Plaintiff also argues that the $2,500 fee for Dr. Patil “is reasonable and customary for a half a day trial time” for which he traveled 12 miles and canceled approximately 16 patients.[8]

Finally, Defendant contests Plaintiff’s request for prejudgment interest pursuant to 6 Del. C. § 2301(d).[9] Defendant argues that Plaintiff failed to follow the requirements of 6 Del. C. § 2301(d) because the “only written demand made upon defendant in this case that was for less than the amount awarded a trial was the March 5, 2007 letter demanding $75,000 and that demand, by its very date, could not have remained valid for 30 days, as required by the statute.”[10]
Defendant also argues that, “There is no legal basis for awarding interest on an unliquidated claim prior to entry of the

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verdict.”[11] According to Defendant, the claim for personal injury damages at issue remained unliquidated until the jury verdict.

On the other hand, Plaintiff argues that she did in fact comply with the requirements of 6 Del. C. § 2301(d) by initially making a written settlement offer of $50,000, which she did not withdraw for more than one year.[12] Plaintiff also argues that the $85,000 settlement demanded at mediation remained open for more than 30 days, before lowering her demand to $75,000 following the unsuccessful mediation. Plaintiff, therefore, asserts that Defendant owes her $31,875.00 in prejudgment interest. Plaintiff arrived at this sum by applying the legal rate of interest at the time of judgment, the 6.25% Federal Reserve discount rate.[13]

3. Delaware Superior Court Civil Rule 68 provides in part “If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.” This

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award of costs under Rule 68 is mandatory.[14] Under Rule 68, however, costs are not recoverable if the plaintiff receives no judgment from defendant, i.e. judgment is for defendant.[15] Furthermore, Delaware Superior Court Civil Rule 54 provides that “costs shall be allowed . . . to the prevailing party upon application to the Court within ten (10) days of the entry of final judgment unless the court otherwise directs.”[16] The Court may, therefore, award costs to the plaintiff under Rule 54, when as here, Plaintiff is the prevailing party.

4. Plaintiff may recover $184 for the Superior Court filing fee. The Court finds that this fee is reasonable.

5. Regarding the mediation fee, the Court finds that Delaware law no longer requires parties to share the cost for mediation. Superior Court Civil Rule 16.2, which relates to sharing mediation costs, was deleted by court order and operative July 1, 2002.[17] Hence, Defendant is not required to submit mediation fees to Plaintiff.

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6. The award of costs for expert witness testimony is committed to the sound discretion of the trial court.[18] When determining reasonable reimbursement for expert costs, the court must “recognize that a significant disruption to a physician’s practice occurs when a physician is called to testify as an expert witness and that such testimony is important to the court since it assists the trier of fact and serves a significant public interest.”[19] There is no fixed formula to determine reasonable expert fees.[20]

Nevertheless, in 2002, the Court held that a fee of $1,800 was appropriate for expert medical testimony that lasted about an hour and a half plus travel time for a total of a half-day of the witness’ time.[21] In 2003, the Court further held that a medical expert could receive $2,000 for three hours of testimony and two hours of travel time.[22]

Here, the Court finds that Plaintiffs’ request for $3,000 in medical expert fees for Dr. Zerefos and $2,500 for Dr. Patil is exceedingly high.

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Therefore, in accordance with the Court’s prior decisions, Plaintiff is only entitled to collect $2,000 per doctor.

7. As to prejudgment interest, 6 Del. C. § 2301(d) requires that Defendant reimburse Plaintiff for interest accrued on final judgment starting from the date of the injury. Delaware law requires that Defendant pay this interest “provided that prior to trial the plaintiff had extended to defendant a written settlement demand valid for a minimum of 30 days in an amount les than the amount of damages upon which the judgment was entered.”[23]

In short, Plaintiff failed to meet this requirement. After reviewing the record, the Court finds that Plaintiff verbally made an $85,000 settlement offer at the January 25, 2007 mediation. Subsequently, Plaintiff sent a written settlement offer of $75,000 directly to Defendant State Farm on March 5, 2007. This settlement offer constitutes the first written demand addressed directly to Defendant State Farm for an amount less than the “amount of damages upon which judgment was entered.” Because trial started on March 19, 2007, Plaintiff failed to make the written demand thirty

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days prior to trial as required by 6 Del. C. § 2301(d). Plaintiff, therefore, does not have the right to prejudgment interest.[24]

8. In sum, Plaintiffs’ Motion for Costs is GRANTED in the amount of $4,239.

IT IS SO ORDERED.

[1] Letter from Bove to Hager of 1/4/07 at 1.

[2] Letter from Bove to Hager of 3/5/07 at 1.

[3] Def. Resp. to Mot. for Costs ¶ 11.

[4] The Court notes that all cases now require electronic filing. However, prior to April 1, 2007, arbitration cases, which include cases under $100,000, did not require electronic filing, where as non-arbitration cases, including cases over $100,000, did require it. In order to file electronically, Plaintiff here paid Lexis an extra 50 cents per page. Plaintiff, therefore, paid nine dollars above the standard $175 filing fee.

[5] Def. Resp. to Mot. for Costs ¶ 8.

[6] Def. Resp. to Mot. for Costs ¶ 10.

[7] Pl. Mot. for Costs ¶ 8.

[8] Pl. Mot. for Costs ¶ 9.

[9] 6 Del. C. § 2301(d) reads:

In any tort action for compensatory damages in the Superior Court or the Court of Common Pleas seeking monetary relief for bodily injuries, death or property damage, interest shall be added to any final judgment entered for damages awarded, calculated at the rate established in subsection (a) of this section, commencing from the date of injury, provided that prior to trial the plaintiff had extended to defendant a written settlement demand valid for a minimum of 30 days in an amount less than the amount of damages upon which the judgment was entered.

[10] Def. Resp. to Mot. for Costs ¶ 7.

[11] Id.

[12] The Court, however, notes letters submitted by Defendant State Farm which specifically contest this point. In an April 15, 2003 letter, counsel for Plaintiff makes a $50,000 settlement offer to a party other than State Farm. Plaintiff also asks the party to “please forward this letter and attached documents to the proper channel for pursuing a UM claim for our client, Eva Dean Seeney. .” (Letter from Bove to Baumgardner of 4/15/03 at 1). Because Plaintiff does not directly address Defendant State Farm in this letter, the Court finds that this letter does not constitute a written settlement offer to Defendant for purposes of the Motion at hand.

[13] In footnote one of Plaintiff’s Motion for Costs, Plaintiff includes the following calculation: $100,000 x 6.25% x 5.1 = $31,875.00

[14] Mulford v. Haas, 2001 WL 541023 at *4 (Del.Super.)H.

[15] Hercules, Inc. v. AIU Ins. Co., 784 A.2d 481, 509-10 (Del. 2001)H.

[16] HSuper. Ct. Civ. R. 54(d)H.

[17] The Court notes that prior to July 1, 2002, Superior Court Civil Rule 16.2(g) required parties to share the mediator’s cost. (Brown v. Capital Mgmt. Co., 2002 Del. Super. LEXIS 133, at *7).

[18] See Donovan v. Delaware Water Air Res. Comm’n., 358 A.2d 717, 723 (Del. 1976); 10 Del. C. § 8906 (1999).

[19] Silwinski v. Duncan, 1992 WL 21132 at *3 (Del.).

[20] Id. at *2.

[21] Dunkle v. Prettyman, 2002 WL 833375 at *4 (Del.Super.).

[22] Patterson v. Coffin, 2003 WL 22853657 at *6 (Del.Super.).

[23] 6 Del. C. § 2301 (2007).

[24] As Plaintiff failed to meet the requirements of 6 Del. C. §2301(d), the Court need not address Defendant’s argument regarding the awarding of interest on unliquidated claims.

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