Opinion
C.A. No. 00C-07-006
Submitted: July 2, 2002
Decided: October 7, 2002
Upon Defendant's Motion for Costs.
Granted in Part. Denied in Part.
Noel E. Primos, Esquire of Schmittinger Rodriguez, Dover, Delaware, for the Plaintiffs.
Jeffrey A. Young, Esquire of Young Young, Dover, Delaware for the Defendants.
ORDER
I. Introduction
Before the Court is Defendants' Motion for Costs pursuant to Superior Court Civil Rules 16.1 and 68. After consideration of the submissions of both parties this Court has determined that costs in this case should be granted with respect to the $100.00 representing defendants' portion of the arbitrator's fee and denied with respect to all other costs.
II. Relevant Facts
Emma Benjamin and Gary Thorpe ("plaintiffs") brought this cause of action against Thomas Mehrtens and his employer Appliance and Refrigeration Services, Inc. ("defendants") as a result of an automobile accident that occurred on July 21, 1998. On October 26, 2000, Arbitration was held. As a result, the Arbitrator awarded $6,000.00 to Plaintiff Benjamin and $200.00 to Plaintiff Thorpe. The plaintiffs appealed the Arbitration decision on November 15, 2000. On January 8, 2001, the defendants filed an Offer Judgment in the amount of $5,000.00 for the plaintiffs. However, the plaintiffs did not accept the offer. A jury trial then commenced in the Superior Court on June 10, 2002. On June 12, 2002, the jury returned a verdict in favor of the defendants.
III. Analysis of Motion for Costs
The defendants seek costs pursuant to Superior Court Civil Rules 16.1(h)(4) and 68. Superior Court Rule 16.1(h)(4) states: "If the party who demands a trial de novo fails to obtain a verdict from the jury . . . more favorable to the party than the arbitrator's order, that party may be assessed fees and costs of the arbitration and the arbitrator's compensation." In this case the plaintiffs were the party that demanded a trial de novo after the arbitration. At trial, the jury entered a verdict for defendants; therefore, plaintiffs failed to obtain a verdict that was more favorable then the arbitrator's order. Consequently, defendants are entitled to recover their portion of the arbitrator's fee which in this case is $100.00. Also, under Rule 16.1(h)(4), defendants sought the costs for the court reporter's appearance and the transcript from the arbitration, but these are trial costs not arbitration costs and as such are not recoverable under this rule.
Subsequent to the filing of this motion the structure of Superior Court Civil Rule 16 has changed. The current rule that is analogous to this rule is Superior Court Civil Rule 16.1(k)(11)(D)(iii), and the language changes between the two rules are minor and do not affect this decision.
Superior Court Civil Rule 68 states in pertinent 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." Rule 68 "does not apply where there is a defense verdict, as such a case is not one where there is a `judgement finally obtained by the offeree . . . not more favorable than the offer.'" Since plaintiffs did not obtain a verdict, Rule 68 does not apply. Therefore, defendants can not recover any costs under this rule.
Legros v. Jewell, 2001 Del. Super. LEXIS 194, *1-*2 (quoting Delta Airlines, Inc. v. August, 450 U.S. 346 (1980)); see also Harvey v. Zecca, 1989 Del. Super. LEXIS 209, *1-*2 (explaining that Rule 68 is not applicable when the judgment favorable to the defendant stating "it is clear that [the Rule] applies only to offers made by the defendant[s] and only to judgments obtained by the plaintiff[s]").
Finally, this Court will not assess any costs under Superior Court Civil Rule 54. In order to receive costs under Superior Court Civil Rule 54 the prevailing party must make "application to Court within ten days of the entry of final judgment . . . ." In the Defendants' Motion for Costs, defendants only sought costs under Superior Court Civil Rules 16.1 and 68, and there is no mention of Rule 54. The first mention of Rule 54 is in the July 2nd response entitled "Defendants' Reply to Plaintiffs' Response to Defendants' Motion for Costs." There are two reasons why the Court will not consider an award of costs pursuant to Rule 54 in this case. First, any attempt to obtain costs under Rule 54 on July 2nd would be considered untimely. The rule requires that the prevailing party file for costs within ten days, thus the time for defendants to seek costs under this rule expired on June 26, 2002. Second, this Reply, as well as plaintiffs' letter response to this Reply, are not permissible without first requesting permission of this Court to file a supplemental response. Here, defendants did not request permission, so , for this Order, only the Defendants' Motion and the Plaintiffs' Response were considered.
Superior Court Kent County Civil Case Management Plan, IV A.4 (after the response, no reply is permitted by Moving Party).
Therefore, defendants' motion for costs is GRANTED with respect to the $100.00 for the arbitrator and DENIED with respect to all other costs. Thus, the total plaintiffs must pay defendants is $100.00.
IT IS SO ORDERED.