Courter v. Fugitt

• Decision Date: 16 July 1999
• Docket Number: No. 15A01-9808-CV-322.,15A01-9808-CV-322.
• Citation: 714 N.E.2d 1129
• Parties: Samantha COURTER and Nicholas Courter, Appellant-Plaintiffs, v. Leonard FUGITT, Appellee-Defendant.
• Court: Indiana Appellate Court

714 N.E.2d 1129

Samantha COURTER and Nicholas Courter, Appellant-Plaintiffs, v. Leonard FUGITT, Appellee-Defendant.

No. 15A01-9808-CV-322.

Court of Appeals of Indiana.

July 16, 1999.

Douglas C. Holland, Lawrenceburg, Indiana, Attorney for Appellant.

William C. Moore, Rocap Witchger & Threlkeld, Indianapolis, Indiana, Attorney for Appellee.

OPINION

ROBB, Judge.

Plaintiffs-Appellants Samantha Courter and Nicholas Courter appeal the trial court's award of attorney fees to Defendant-Appellee Leonard Fugitt pursuant to Indiana Code section 34-4-44.6-9. We reverse.

Issue¹

Samantha and Nicholas raise the following restated issue for our review: whether the trial court erred in awarding attorney fees to Fugitt based upon the fact that they rejected a qualified offer of settlement he had made to each of them and that the jury returned a verdict for each of them in a monetary amount less than Fugitt's offer.²

Facts and Procedural History

Kimberly Courter and her three minor children, Rachel, Samantha and Nicholas, were involved in an automobile accident with Fugitt in February 1997. Kimberly, in her name only, sued Fugitt for personal injuries related to the accident. Fugitt moved to join the three children as parties to the action. While a ruling on his motion to join was pending, Fugitt extended a qualified offer of settlement to Kimberly, Rachel, Samantha and Nicholas, which stated, in pertinent part, as follows:

In the event that Nicholas Courter, Samantha Courter and Rachel Courter are joined as parties to this action, the Defendant will further offer $750.00 payment to Samantha Courter and her Attorney and $750.00 to Nicholas Courter and his Attorney.. . . In exchange for such payments, Kim Courter, as parent and natural guardian of Samantha, Nicholas and Rachel Courter will agree to sign a Parents Indemnifying Release and to agree to dismissal of this entire cause, with prejudice. To the extent that Court approval is necessary for the minor's settlements, Kim Courter will agree to take such steps as are necessary so that the Court can approve the settlement.

R. 8.³ The day after this offer was extended, Fugitt's motion to join was granted. On November 14, 1997, Kimberly filed an amended complaint which included all three children, as well as her husband, Michael, as plaintiffs.

Fugitt's qualified offer of settlement was not accepted, and the case proceeded to trial. The jury found in favor of the plaintiffs, awarding to each Kimberly and Rachel an amount in excess of the amount which had been offered by Fugitt to settle. However, Samantha and Nicholas were awarded only $500.00 each, an amount which was less than the $750.00 Fugitt had offered to settle their cases. All parties then moved for an award of attorney fees.⁴ The trial court awarded Kimberly and Rachel each $1,000 from Fugitt in attorney fees and awarded Fugitt $1,000 in attorney fees from each Samantha and Nicholas. The Courters now appeal.

Discussion and Decision

Indiana Code chapter 34-50-1⁵ authorizes a party to make a qualified settlement offer in certain tort actions at any time after a complaint has been filed. Ind.Code § 34-50-1-2. A "qualified settlement offer" is defined as "an offer of full and final settlement to resolve all claims and defenses at issue between the offeror . . . and the recipient. . . ." Ind.Code § 34-6-2-128. The technical requirements for a qualified settlement offer are that it must: (1) be in writing; (2) be signed by the offeror or his attorney of record; (3) be designated as a qualified settlement offer; (4) be delivered to the recipient or his attorney of record by registered or certified mail or some other method which verifies the date of receipt; (5) set forth the complete terms of the proposed settlement in sufficient detail to allow the recipient to decide whether to accept or reject the offer; (6) include the name and address of the offeror and his attorney of record, if any; and (7) expressly revoke any prior qualified settlement offers. Ind.Code § 34-50-1-4.

If the recipient chooses to accept the qualified settlement offer, the acceptance must be: (1) unconditional; (2) in writing; (3) signed by the recipient or his attorney of record, if any; (4) delivered by registered or certified mail or some other method which verifies the date of receipt; (5) delivered to the offeror or his attorney of record, if any; and (6) delivered not more than thirty days after the recipient received the qualified settlement offer. Ind.Code § 34-50-1-5. If the recipient chooses not to accept the qualified settlement offer, and the "final judgment is less favorable to the recipient than the terms of the qualified settlement offer; the court shall award attorney's fees, costs and expenses to the offeror upon the offeror's motion." Ind. Code § 34-50-1-6(a). The award of attorney's fees "must consist of attorney's fees at a rate of not more than one hundred dollars ($100) per hour and other costs and expenses incurred by the offeror after the date of the qualified settlement offer." Ind.Code § 34-50-1-6(b). The total award may not exceed $1,000. Id. The motion for attorney's fees must be filed not more than thirty days after entry of judgment, and the motion "must be accompanied by an affidavit of the offeror or the offeror's attorney establishing the amount of the attorney's fees and other costs and expenses incurred by the offeror after the date of the qualified settlement offer. The affidavit constitutes prima facie proof of the reasonableness of the amount." Ind. Code § 34-50-1-6(c).

We begin by noting that our research has revealed no cases interpreting or applying this statute to date. However, several general principles apply. Indiana adheres to the "American Rule" with respect to the payment of attorney fees and requires that parties pay their own attorney fees absent an agreement between the parties, statutory authority, or rule to the contrary. Chavis v. Patton, 683 N.E.2d 253, 258 (Ind. Ct.App.1997). Thus, the Offers of Settlement statute is in derogation of the common law rule, and, as such, must be strictly construed. See Pinnacle Properties v. Saulka, 693 N.E.2d 101, 104 (Ind.Ct.App.1998), trans. denied. The cardinal rule of statutory construction is to ascertain and effect the intent of the drafter. Chavis, 683 N.E.2d at 259. We presume that "the legislature did not intend by statute to make any change in the common law beyond what it declares either in express terms or by unmistakable implication." Id. at 258. Statutes are to be interpreted as a whole, giving every word its common and ordinary meaning, and no part of the statute is to be held meaningless if it can be reconciled with the rest of the statute. Chamness v. Carter, 575 N.E.2d 317, 319 (Ind.Ct.App.1991).

The Courters contend that the trial court erred in several respects in awarding attorney fees to Fugitt pursuant to his motion. We find the following issue dispositive: whether Fugitt's qualified offer of settlement was effective as to Samantha and Nicholas. The relevant terms are defined as follows:

"Offeror", for purposes of IND. CODE 34-50, means a party to a civil action who makes a qualified settlement offer (as defined in section 128 of this chapter) to a recipient (as defined in section 129 of this chapter) who is an opposing party in the civil action.

Ind.Code § 34-6-2-90 (emphasis added).

"Recipient", for purposes of IND. CODE 34-50, means a party to a civil action who receives a qualified settlement offer (as defined in section 128 of this chapter) from an offeror (as defined in section 90 of this chapter) who is an opposing party in the civil action.

Ind.Code § 34-6-2-129 (emphasis added).

The Courters allege that Fugitt's offer of settlement was not timely as to Nicholas and Samantha because they were not parties to this action at the time the qualified settlement offer was extended and thus could not be "recipients" of the offer. We agree. A strict construction of the statute clearly contemplates that a qualified settlement offer can be made only to a party to the action. In discussing who are parties to an action, the...