McKinney v. Brandywine Court Condo. Coun.

Full title: CHRISTINE McKINNEY, Plaintiff, v. BRANDYWINE COURT CONDOMINIUM COUNCIL…

Court: Superior Court of Delaware, for Kent County

Date published: Aug 12, 2004

C.A. No. 01C-08-017 WLW (Del. Super. Ct. Aug. 12, 2004)

Opinion

C.A. No. 01C-08-017 WLW.

Heard August 6, 2004.

Decided August 12, 2004.

Upon Defendant' s Motion for Costs. Granted in part; Denied in part.

Wayne N. Elliott, Esquire, Prickett Jones Elliott, P.A., Dover, Delaware, attorneys for the Plaintiff.

Carol J. Antoff, Esquire, Reger Rizzo, LLP, Wilmington, Delaware, attorneys for the Defendant.

ORDER

WILLIAM L. WITHAM, Jr.

Introduction

Before this Court is Defendant Brandywine Condominium Council, Inc.'s motion for costs following a trial on the merits. Plaintiff Christine McKinney opposes the motion.

Background

McKinney filed suit against Brandywine Condominium after falling on allegedly icy steps outside of her condominium building. An arbitration hearing was held on March 13, 2002, after which the arbitrator entered an order awarding Plaintiff damages in the amount of $24,000. Plaintiff filed a demand for a trial de novo on June 13, 2002. On June 18, 2002, Defendant made an offer of judgment in the amount of $24,000, which the Plaintiff rejected. Following a five-day jury trial, final judgment was entered for the Defendant on July 2, 2004. Defendant filed these motions for costs on July 12, 2004.

Discussion

Costs Pursuant to Rule 68

Defendant has filed a motion pursuant to Superior Court Civil Rule 68 to recover its costs associated with the litigation following the offer of judgment made on June 18, 2002, in the amount of $24,000.00. The costs requested under Rule 68 are as follows:

(a) Anthony Reporting for the discovery deposition of Plaintiff $ 180.00 (b) Anthony Reporting for the discovery deposition of Marla McKinney $ 91.75 (c) Anthony Reporting for the discovery deposition of Gregory Harrison $ 209.75 (d) Anthony Reporting for deposition transcripts of Winfield Scott, Panajot Ilias, and Zannis Bousses $ 95.30 (e) Wilcox Fetzer for arbitration transcript $ 251.08 (f) Pyramid Investigation for September 2002 and October 2002 surveillance $ 709.83 (g) Pyramid Investigation for May 2003 investigative services $ 155.02 (h) Gregory Harrison, Plaintiff' s engineering expert, for discovery deposition $1,250.00 Superior Court Civil Rule 68 provides that if an offer of judgment has been made and "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." However, the Delaware Supreme Court has concluded, relying upon a United States Supreme Court decision,¹ that Rule 68 does not apply when judgment is entered for the defendant and plaintiff receives no award.² Here Defendant made an offer of judgment of $24,000.00 on June 17, 2002, which Plaintiff rejected. Following a trial, the jury returned a verdict for the Defendant without any award for the Plaintiff. Accordingly, Defendant is not entitled to any costs pursuant to Rule 68.

In the alternative Defendant contends that these costs should be awarded under 10 Del. C. § 5101 and Superior Court Civil Rule 54 because Defendant was the prevailing party. However, none of these items are costs which may be awarded under Rule 54. Costs for deposition transcripts may not be awarded unless the deposition was introduced into evidence in its entirety.³ None of the transcripts listed were introduced into evidence. In addition, charges for surveillance and investigative services are not costs which may be awarded. Accordingly, Defendant' s motion for these costs pursuant to Rule 68 and Rule 54 is denied. Costs Pursuant to Rule 16.1

3 Superior Court Civil Rule 54(g). See also Chaplake Holdings, Ltd. v. Chrysler Corp., 2002 Del. Super. LEXIS 31, *146, rev'd on other grounds, 822 A.2d 1024 (Del. 2003).

Defendant has filed another motion for costs pursuant to Superior Court Rules 16.1 and 54. The costs requested under Rule 16.1 are:

(a) Arbitrator's fee $ 150.00 (b) Dr. Mohamad Kamali's independent medical examination and report used as an arbitration exhibit $ 725.00 (c) Wilcox Fetzer for recording the arbitration testimony $ 175.00 Superior Court Civil 16.1(k)(11)(D)(iii) states, "If the party who demands a trial de novo [following an arbitration proceeding] fails to obtain a verdict from the jury . . . more favorable to the party than the arbitrator's order, that party shall be assessed the costs of the arbitration, and the ADR Practitioner's total compensation." In this case, the Plaintiff demanded a trial de novo after the arbitrator awarded Plaintiff $24,000. The jury then returned a verdict for Defendant. Accordingly, Defendant is entitled to recover its portion of the arbitrator' s fee which is $150.00. However, Defendant has also sought to recover the court reporter' s fee and the medical expert' s fee for the IME and report. These are not arbitration costs, but rather trial costs, and as such are not recoverable under Rule 16.1.⁴

Defendant requests that in the alternative these costs be awarded under Superior Court Civil Rule 54. However, only the time an expert spends testifying or waiting to testify may be awarded under Rule 54. Further, only the cost of transcripts actually introduced at trial may be awarded. Therefore, Defendant will be awarded costs of $150 for the arbitrator' s fee.

Costs Pursuant to Rule 54 and 10 Del. C. § 5101

Finally, Defendant has requested costs under Rule 54. These costs are:

(a) Legal Beagles, Inc. for service of process of subpoena for trial testimony $ 70.00 (b) Barlow Reporting for a trial deposition transcript of Jason Thawley $ 142.50 (c) Corbett Associates for trial deposition transcript and videotape of Dr. Mohammad Kamali $ 393.75 (d) Corbett Associates for trial deposition transcript of Dr. Richard DuShuttle $ 199.30 (e) Artistic Video for trial exhibit $ 125.00 (f) O.K. Video for duplication of trial video $ 17.50 (g) Dr. Mohammad Kamali for trial deposition $2,500.00 (h) Klaus Haglid, P.E., for site investigation, research, consultation and written report $7,830.00 (I) Klaus Haglid, P.E., for engineering analysis, review and analysis of Plaintiff' s expert report, and review and analysis of building codes $3,937.50 (j) Klaus Haglid, P.E., for trial testimony $2,820.00 (k) Klaus Haglid, P.E. for time spent answering Plaintiff' s Interrogatories $ 360.00 (l) ParaPlus Interpreters for the interpretation services rendered by Greg Papas at trial $ 602.50 Title 10, section 5101 of the Delaware Code provides that "[g]enerally a party for whom final judgment in any civil action . . . is given . . . shall recover, against the adverse party, costs of suit, to be awarded by the court."⁵ Superior Court Civil Rule 54 states, "Except when express provision therefor is made either in a statute or in these Rules or in the Rules of the Supreme Court, costs shall be allowed as of course to the prevailing party . . . unless the Court otherwise directs."⁶ Determining when costs are to be awarded is a matter of judicial discretion; there may be circumstances under which costs are not awarded to the prevailing party.⁷ Importantly, there is nothing in the statute which permits "assessment of costs of an unsuccessful party against a prevailing party."⁸ In this case, Defendant is the prevailing party. Accordingly, Defendant may be allowed to recover some of its costs. Plaintiff does not dispute the costs for items (a) through (f) above. Therefore, the Court will award the Defendant those costs. However, the Court will evaluate the additional items requested.

Expert Witness Fees

Title 10, section 8906 of the Delaware Code provides, "The fees for witnesses testifying as experts . . . in the Superior Court . . . shall be fixed by the court in its discretion, and such fees so fixed shall be taxed as part of the costs in each case and shall be collected and paid as other witness fees are now collected and paid."⁹ In Delaware it is well settled that "the expert' s fee that is recoverable as a cost of litigation is limited to the time necessarily spent in actual attendance upon the Court for the purpose of testifying."¹⁰ "Attendance" does not include time spent listening to other witnesses for orientation or in consulting with a party or counsel during the trial.¹¹ However, time spent waiting to testify and travel time may be reimbursed. Further, reimbursement for expert testimony encompasses deposition testimony which is introduced into evidence in its entirety at trial.¹²

9 10 Del. C. § 8906.

10 State v. 0.0673 Acres of Land, 224 A.2d 598, 602 (Del. 1966).

11 Id. at 602.

12 Nygaard v. Lucchesi, 654 A.2d 410, 413 (Del.Super.Ct. 1994).

Defendant has requested to recover costs for the services of Klaus Haglid, Defendant' s engineering expert. As stated above, only the cost of the expert' s time spent in actual attendance may be recovered as costs. However, Defendant argues that items (h), (I), (j), and (k) should be recoverable under Rule 54(e) as unnecessary costs caused by the Plaintiff. Defendant has failed to establish that these were unnecessarily incurred expenses. Therefore, items (h), (I), and (k) are not recoverable.

Defendant may recover the cost for Mr. Haglid's time spent testifying, item (j). According to Plaintiff, compensation for one day would be appropriate for the time Mr. Haglid spent traveling, waiting to testify and actually testifying. In previous cases, the Court has found an hourly rate of $150 to be appropriate for an expert engineer.¹³ Accordingly, the Court will exercise its discretion and award Defendant $1,200 for Mr. Haglid's trial testimony.

13 See Midcap v. Sears, Roebuck Co., Del. Super. Ct., C.A. 01C-03-042 WLW, Witham, J. (May 26, 2004).

Defendant has also requested $2,500 as Dr. Kamali's fee for his videotaped trial deposition. Plaintiff contends the fee is excessive. According to Court records, the videotape played during the trial ran approximately one hour and was taken at Dr. Kamali's office. Previously the Court has relied upon a 1995 study performed by the Medical Society of Delaware' s Medico-Legal Affairs Committee in which a reasonable fee for deposition testimony by a physician was found to be $500 to $900 for a two-hour deposition. Since the study was conducted, the medical care price index has increased by approximately 34.2% according to the U.S. Bureau of Labor statistics. Accordingly, the current rate would be $671 to $1,207 for a two-hour deposition. Based on this information, the Court will use its discretion and award Defendant $900 for Dr. Kamali's deposition.

Interpreter' s Services

Finally, Defendant is attempting to recover for the cost of interpretation services used for Defense witness Panajot Ilias. Plaintiff contends that this is outside the costs "necessarily incurred" in the presenting of evidence at trial. In Zakrzewski v. Dailey, the Superior Court awarded the costs of interpretation services to the plaintiff when the verdict was for the plaintiff and the interpreter was hired by the defendant.¹⁴ In this case the interpreter was hired by the Defendant and Plaintiff objected as to the necessity of an interpreter for Mr. Ilias. Based on this and the testimony of the witness himself, the Court finds that the interpreter' s services were not necessary and should be borne by the Defendant rather than the Plaintiff.

14 2000 Del. Super. LEXIS 502, *10-11.

Conclusion

Based upon 10 Del. C. § 5101, Superior Court Civil Rule 54, and 10 Del. C. § 8906, and in the exercise of its discretion, the Court will award the following costs to the Defendant:

Arbitrator's fee $ 150.00 Legal Beagles, Inc. for service of process of subpoena for trial testimony $ 70.00 Barlow Reporting for a trial deposition transcript of Jason Thawley $ 142.50 Corbett Associates for trial deposition transcript and videotape of Dr. Mohammad Kamali $ 393.75 Corbett Associates for trial deposition transcript of Dr. Richard DuShuttle $ 199.30 Artistic Video for trial exhibit $ 125.00 O.K. Video for duplication of trial video $ 17.50 Dr. Mohammad Kamali for trial deposition $ 900.00 Klaus Haglid, P.E., for trial testimony $1,200.00 __________ TOTAL $3,198.05 IT IS SO ORDERED.