Scott v. Irmeger

SHARPNACK, Judge,

dissenting.

I respectfully dissent because I conclude that the trial court erred in its interpretation of Ind.Code § 34-50-1-6, the Qualified Settlement Offer statute ("QSO statute"). I conclude that under the plain language of the statute Irmeger did not incur attorney fees and is not entitled to an award of $1,000 under the QSO statute.

Resolution of this issue requires that we interpret the QSO statute. "The first step in interpreting any Indiana statute is to determine whether the legislature has spoken clearly and unambiguously on the point in question." St Vincent Hosp. & Health Care Center, Inc. v. Steele, 766 N.E.2d 699, 703-704 (Ind.2002). If a stat*1243ute is unambiguous, we must give the statute its clear and plain meaning. Bolin v. Wingert, 764 N.E.2d 201, 204 (Ind.2002). A statute is unambiguous if it is not susceptible to more than one interpretation. Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 942 (Ind.2001).

Moreover, 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. Courter v. Fugitt, 714 N.E.2d 1129, 1132 (Ind.Ct.App.1999). Thus, the QSO statute is in derogation of the common law rule and, as such, must be strictly construed. Id. The cardinal rule of statutory construction is to ascertain and effect the intent of the drafter. Id. 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.

The QSO statute provides in part:

(a) If:
(1) a recipient does not accept a qualified settlement offer; and
(2) 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.
(b) An award of attorney's fees, costs, and expenses under this section 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. However, the award of attorney's fees, costs, and expenses may not total more than one thousand dollars ($1,000).

I.C. § 34-50-1-6 (emphasis added). "'Of-feror', for purposes of IC 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. Black's Law Dictionary defines "incur" as: "To have liabilities cast upon one by act or operation of law, as distinguished from contract, where the party acts affirmatively. To become liable or subject to, to bring down upon oneself, as to incur debt, danger, displeasure and penalty, and to become through one's own action liable or subject to." Black's Law Dictionary 768 (6th ed.1990).

Here, Irmeger was a party to the civil action, but Irmeger did not "incur" attorney fees. Appellant's App. p. 45. Rather, his insurance company incurred the attorney fees. The text of the statute on its face does not include a nonparty as an offeror nor provide for the recovery of attorney fees not incurred by the offeror. Notably, the statute does not provide for the recovery of attorney fees incurred "on behalf of an offeror" nor, more to the point perhaps, incurred "by an insurer providing a defense to an offeror."

The reality of insurance company provided defense and contingent fee progecution of tort claims was surely known to the legislature and those seeking legislation to attach cost incentive factors to settlement efforts. The language of the statute does not address that reality. We should not distort our language to "rewrite" the statute. "We may not ignore the clear language of a statute and 'in effect[ ] rewrite a statute in order to render it consistent with our view of sound public policy'" Myers v. State, 714 N.E.2d 276, 284 (Ind.Ct.App.1999) (quoting Robinson v. Monroe County, 663 N.E.2d 196, 198 (Ind.Ct.App.1996)), trans. denied. Strictly construing *1244the QSO statute, I conclude that the trial court erred by awarding Irmeger the $1,000 of attorney fees. Consequently, I would reverse. See, e.g., Courter, 714 N.E.2d at 1133 (strictly construing the QSO statute and holding that the trial court erred by awarding attorney fees because the children were not parties to the action at the time of the qualified settlement offer).