Berryman v. Metcalf

Decision Date12 November 2013
Docket NumberNo. 68544–9–I.,68544–9–I.
Citation177 Wash.App. 644,312 P.3d 745
CourtWashington Court of Appeals
PartiesJulie BERRYMAN, Respondent, v. Akeem METCALF and Jane Doe Metcalf, and the marital community comprised thereof, and Rita Metcalf and John Doe Metcalf, and the marital community comprised thereof and Jeffrey Walker and Jane Doe Walker, and the marital community comprised thereof, and Michael A. Ward and Jane Doe Ward, and the marital community thereof, Defendants, and Farmers Insurance Company of Washington, Appellant.

177 Wash.App. 644
312 P.3d 745

Julie BERRYMAN, Respondent,
Akeem METCALF and Jane Doe Metcalf, and the marital community comprised thereof, and Rita Metcalf and John Doe Metcalf, and the marital community comprised thereof and Jeffrey Walker and Jane Doe Walker, and the marital community comprised thereof, and Michael A. Ward and Jane Doe Ward, and the marital community thereof, Defendants,
Farmers Insurance Company of Washington, Appellant.

No. 68544–9–I.

Court of Appeals of Washington,
Division 1.

Nov. 12, 2013.

[312 P.3d 750]

Nancy Katherine McCoid, Nathaniel Justin Ree Smith, Soha & Lang PS, Seattle, WA, for Appellant.

Patrick Joon Kang, Jason Garrett Epstein, Premier Law Group, PLLC, Bellevue, WA, Howard Mark Goodfriend, Smith Goodfriend PS, Seattle, WA, for Respondents.


¶ 1 The trial court approved as reasonable a total of 468.55 hours billed by two attorneys for taking a minor soft tissue injury case through a short trial de novo, where the defendant did not improve its position after a mandatory arbitration. The court then applied a multiplier of 2.0 because counsel, working on a contingent fee arrangement, substantially risked receiving no compensation or inadequate compensation. Under the circumstances of this unexceptional case, the fee award of nearly $292,000 was an abuse of discretion. We reverse the award of attorney fees and remand for meaningful consideration of what constitutes a reasonable fee. However, we find no abuse of discretion in the trial court's evidentiary rulings and consequently hold that the defendant is not entitled to a new trial.


¶ 2 This case arose from a three-car collision on February 24, 2007. Plaintiff Julie Berryman was in her Chevrolet Caprice, preparing to turn into a driveway. An uninsured driver in a Dodge Caravan rear-ended the Caprice. Another uninsured driver, who was driving a Honda Accord, rear-ended the Dodge and pushed it into Berryman's Caprice. Berryman felt pain in her neck and back that night and sought treatment from a chiropractor two days later. Over the next three and a half years, she continued with chiropractic treatment.

¶ 3 Berryman had underinsured motorist coverage from Farmers Insurance Company of Washington. Berryman received personal injury protection payments of $7,393.47 from Farmers.

¶ 4 In May 2009, Berryman retained the Premier Law Group, PLLC. She signed a contingency fee agreement. Berryman sued the uninsured drivers in superior court in January 2010. The uninsured drivers defaulted. Farmers intervened to assert the defenses the drivers would have presented.

¶ 5 Berryman certified that her claim for damages was not in excess of $50,000. The case was transferred to mandatory arbitration under chapter RCW 7.06. The arbitration took place on December 10, 2010. The arbitrator awarded Berryman $13,724 in special damages and $22,000 in general damages, for a total of $35,724 in compensatory damages.

¶ 6 Farmers requested trial de novo. Berryman offered to settle for $30,000. Farmers did not accept the offer.

¶ 7 Farmers conceded before trial that according to the police report, the uninsured drivers were at fault.1 Farmers made no attempt thereafter to prove anyone else was at fault. The issues for trial were causation and whether the medical expenses Berryman claimed were necessary and reasonable. 2

¶ 8 Farmers retained Dr. Allan Tencer, a University of Washington professor of biomechanical engineering, to testify at trial about the forces involved in the accident. Dr. Tencer prepared a report stating his opinion that “The forces acting on Ms. Berryman's body in this accident appear to be within the range of forces experienced in daily living.” 3 Berryman successfully moved pretrial to exclude Dr. Tencer's testimony.

[312 P.3d 751]

¶ 9 Farmers also planned to present testimony by Dr. Thomas Renninger, a chiropractor who had examined Berryman before the arbitration. In his original report, Dr. Renninger gave his opinion that in view of the minor nature of the accident, no more than six weeks of treatment was reasonably needed. In an addendum filed after he reviewed Dr. Tencer's report, Dr. Renninger amended his opinion and said that Berryman did not sustain any injury as a result of the accident.

¶ 10 Trial began on Wednesday, December 14, 2011. On that first day, the court announced that all motions in limine by both parties would be granted. One of these was Berryman's motion to prohibit Dr. Renninger from expressing an opinion based on Dr. Tencer's report and to exclude any references by counsel or witnesses to vehicle damage or Tencer's report. Another was Berryman's motion to exclude photographs of Berryman's car. After the jury was selected and sworn, Farmers asked the court to reconsider the order excluding testimony about damage to Berryman's car. Farmers hoped to counter any suggestion that Berryman had been the victim of a high-impact accident by eliciting evidence that the visible damage to her car and its trailer hitch was minimal. The court declined to reconsider, reasoning that property damage was not at issue and “one cannot surmise anything about personal injury from the state of the vehicle.” The day ended with both parties making opening statements.

¶ 11 On Thursday, December 15, Berryman presented her case, beginning with Dr. Chinn, one of the chiropractors who treated her. The jury heard Berryman's fiancee and Berryman's mother briefly report their observations about how Berryman's back pain had impaired her everyday activities. A second chiropractor, Dr. Saggau, testified by videotaped deposition. In the opinion of both chiropractors, the accident caused Berryman significant injury, and the treatment expenses she was claiming were reasonable and necessitated by the accident. The day closed with Berryman's testimony.

¶ 12 On Monday, December 19, Farmers presented the defense case. Dr. Renninger testified that he did not consider Berryman's injury “significant.” He opined that at most, six weeks of treatment was reasonable, and beyond that Berryman would have been better off to adopt an exercise regimen. The cross-examination emphasized that Dr. Renninger had examined Berryman only once. Counsel brought out the substantial income Dr. Renninger received from doing insurance defense work in car accident cases. After Dr. Renninger testified, Berryman presented rebuttal witness Dr. Bangerter, a chiropractor who testified on the basis of a records review that Berryman had significant and chronic injuries related to the collision that would continue to require at least monthly treatment for up to five years.

¶ 13 On Tuesday morning, December 20, the jury heard closing arguments. Berryman requested damages between $53,000 and $56,000. Farmers argued that a verdict of $7,000 was appropriate. After deliberating for about two hours, the jury awarded Berryman a total of $36,542 in damages. The components were $18,042 for past medical expenses, $2,000 for future medical expenses, and $16,500 for past and future noneconomic damages.

¶ 14 A party who appeals the award in a mandatory arbitration and fails to improve his position on trial de novo must pay the attorney fees incurred by the nonappealing party. RCW 7.06.060(1). If the nonappealing party serves a timely written offer of compromise, the offer replaces the amount of the arbitrator's award for the purpose of determining whether the appealing party has improved his position. RCW 7.06.050(1)(b). Because the jury's verdict exceeded Berryman's offer of compromise, Farmers failed to improve its position at the trial de novo, and the trial court correctly determined that Berryman was entitled to an award of fees and costs. RCW 7.06.060; Niccum v. Enquist, 175 Wash.2d 441, 286 P.3d 966 (2012).

¶ 15 Berryman's two attorneys, Patrick Kang and Jason Epstein, submitted a fee request based on an hourly rate of $300. They presented contemporaneous timekeeping records that had been sent to Berryman as monthly invoices. The records submitted by Kang and Epstein documented a total of 468.55 hours. In keeping with

[312 P.3d 752]

MAR 7.3, which limits the award of fees and costs to those incurred after the request for trial de novo is filed, the hours they claimed were all incurred during the period of approximately one year between the request for trial de novo and the entry of judgment, from January 11, 2011, to February 2, 2012. They requested a multiplier of 1.5 to 2.0.

¶ 16 Over Farmers' objections, the court found the claimed hours and rates were reasonable, for a lodestar of $140,000 for pre-verdict work. The court granted a multiplier of 2.0. The total award was $291,950 in attorney fees (including $11,950 for post-verdict work) and $9,317 in costs. The trial court denied Farmers' motion for a new trial. Farmers appeals.


¶ 17 Farmers assigns error to the exclusion of Dr. Tencer's testimony.

¶ 18 Dr. Tencer has been retained frequently as an expert defense witness in similar cases. See Stedman v. Cooper, 172 Wash.App. 9, 292 P.3d 764 (2012); Maele v. Arrington, 111 Wash.App. 557, 562–64, 45 P.3d 557 (2002). The testimony he was prepared to give in this case, as set forth in his report, was similar to the testimony offered by the defendant in Stedman. The trial court's exclusion of Dr. Tencer was consistent with this court's reasoning in affirming the decision to exclude his testimony in Stedman. Following Stedman, we conclude it was not an abuse of discretion to exclude Dr. Tencer's testimony as well as the portions of Dr. Renninger's testimony that referred to and relied on Dr. Tencer's report.

¶ 19 Farmers also assigns error to the trial court's decision to exclude photographs of Berryman's car. The court ruled on the first day of trial that no mention should be made of damage to the car unless Berryman or her witnesses opened the door:

No reference to vehicle damage would be admitted, and that includes asking questions of the plaintiff, that includes...

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