One of the first questions potential personal injury plaintiffs ask is how much it’s going to cost to hire an attorney. The good news is most injury cases are accepted on a contingency fee basis, which means nothing is paid upfront. Instead, payment is derived from a percentage of the damages awarded – if damages are awarded. If you lose, you don’t pay the attorney for their time. It’s a gamble for lawyers, which is why they are choosy about the cases they accept.
In most situations, per “the American Rule,” the losing side doesn’t have to pay attorney fees to the winner. (This is in contrast to “the English Rule,” in which the losing side is typically ordered to pay the losing side’s attorney fees.) However, many jurisdictions – including North Carolina – allow a big exception to the American Rule. An unwarranted refusal to pay a claim or negotiate a settlement can be grounds for a plaintiff to assert a defendant should cover attorney fees.
The Florida Supreme Court recently considered a dispute over this exception, following a $1.7 million verdict in favor of a crime victim who sued the hotel where the attack occurred for failing to protect him.
In Anderson v. Hilton Hotels, the plaintiff was a victim of an armed robbery, carjacking, and shooting in the parking lot of an Orlando hotel back in September 2008. The plaintiff filed a premises liability lawsuit against the hotel for negligence. His wife also sought damages for loss of consortium.
In October 2011, the plaintiff proposed a settlement offer to the hotel, as well as the defendant management, realty, and security companies. He offered to settle with the hotel for $650,000, with the management company for $650,000, with the realty company for $100,000, and with the security company for $300,000. This appeal concerns only the settlement offer made to the hotel. The proposed settlement would have included all of the damages claimed by the plaintiff for interest, costs, and expenses, as well as any claimed attorney fees.
Those offers were rejected.
His wife also extended settlement offers on her loss of consortium claims, but she ultimately voluntarily dismissed her claims.
The first trial ended in a mistrial. The second trial proceeded in October 2012. Attorneys from a single law firm represented the hotel, management company, and realty firm – collectively known as one entity. This was despite the fact that they were actually separate entities, and they were not named as one defendant in the complaint or subsequent filings. The defendant, however, did agree to refer to them as one entity in jury instructions.
Subsequently, jurors assigned those three defendants – called by the single-entity name – with 72 percent liability. The security company was deemed 28 percent liable. The trial court entered a judgment in favor of the plaintiff for $1.7 million in damages. Of that, $1.2 million was to be paid by the hotel, management, and realty firms, while the remaining $477,000 was to be paid by the security firm.
The plaintiff then sought attorney’s fees, pursuant to state statute and civil procedural rules similar to those in North Carolina, which allow for the recovery of such fees when a reasonable settlement offer is rejected. (In that state, settlement offers are deemed rejected if they are not accepted in 30 days, and the plaintiff can recover attorney fees if the judgment is at least 25 percent greater than the offer). However, the trial court denied the plaintiff’s motion because it found the plaintiff had failed to request a verdict that assigned separate findings of fault among the three defendants. That meant that the $650,000 offer was being compared to the $1.2 million that was ultimately awarded.
The Fifth DCA affirmed the trial court, finding the settlement offer was ambiguous and lacked clarity because it didn’t stipulate whether it settled just his claim or his claim and his wife’s claim. Furthermore, since the plaintiff agreed to have these three entities treated as one by the jury, the total sum of damages to be paid by the three of them was actually less than what the plaintiff had demanded in his settlement offer.
The state supreme court overruled, holding that the plain language of the state statute entitled the plaintiff to attorney’s fees. He had, the court ruled, submitted sufficient offers to settle his claims and subsequently obtained satisfactory judgments in his favor.
If you are concerned about attorney’s fees in your case, our experienced Asheville premises liability lawyers can help you understand your rights and what it will take to bring a successful injury claim to court.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Anderson v. Hilton Hotels, Nov. 3, 2016, Florida Supreme Court
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Chang v. Carnival Corp. – Limits on Cruise Ship Injury Lawsuits, Oct. 18, 2016, Asheville Personal Injury Lawyer Blog