Lierenz v. McCall.

• Court: Superior Court of Delaware
• Decided: April 10, 2015
• Docket: 13C-12-187
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

SHERRI L. LIERENZ and ) JOHN W. LIERENZ, ) ) Plaintiffs, ) ) C. A. No. N13C-12-187 JRJ v. ) ) EVERETT NELSON MCCALL, SR, ) ) Defendant. ) )

ORDER

AND NOW TO WIT, this 10th day of April, 2015, IT IS HEREBY

ORDERED THAT the Plaintiffs’ Motion to Recover Costs of Court-Ordered

Mediation as “Costs Accrued” when Accepting Offer of Judgment Pursuant to

Rule 68 is DENIED for the following reasons:

1. On February 15, 2012, Plaintiffs Sherri and John Lierenz (“Plaintiffs”)

and Defendant Everett McCall, Sr., engaged in mandatory court-ordered

alternative dispute resolution pursuant to Superior Court Civil Rule 16.

Negotiations continued with the mediator via email communications and

teleconferences until January 8, 2015.

2. Defendant made an offer of judgment, pursuant to Rule 68, for a sum

certain, plus ordinary court costs on January 8, 2015. On January 14, 2015,

Plaintiffs accepted the offer of judgment, together with the following costs: Lexis- Nexis Court link filing fees; Certified Judgment, Voluntary Assessment Center;

and Superior Court Mediator’s Fee.

3. Defendant refused to reimburse Plaintiffs for Plaintiffs’ portion of the

mediator’s fee because the mediation agreement provides that the fee is to be

divided equally between both sides. Plaintiffs now seek an order awarding them

the mediator’s fee against Defendant. Plaintiffs argue that mediators’ fees in court-

ordered compulsory mediations should be deemed reasonable and necessary costs

recoverable to a party accepting an offer of judgment pursuant to Rule 68.

4. Pursuant to Rule 16, court-ordered alternative dispute resolution is

compulsory. 1 Rule 16(b) provides that, “[t]he parties shall pay the ADR

Practitioner in accordance with the allocation and amount of fees established by

the ADR Practitioner and agreed to by the parties or ordered by the Court.” 2

5. Traditionally, parties split mediators’ fees, and Delaware Courts have

been reluctant to disturb this practice.3 However, Delaware Courts have allowed

the recovery of mediation fees when the jury awarded no damages to the plaintiff

or the jury awarded an amount greater than the defendant’s offer of judgment. 4

1 Super. Ct. Civ. R. 16. 2 Id. 3 Reinke v. Furbush, 2011 WL 7063367, at *2 (Del. Super. 2011); Kuratle Contracting, Inc. v. Linden Green Condo., Ass’n, 2014 WL 5391291, at *10 (Del. Super. 2014). 4 See West. v. Maxwell, 2001 WL 789654 (Del. Super. 2001) (reimbursed prevailing plaintiff for the cost of two court-ordered mediations following a verdict in excess of the defendant’s offer of judgment); Spencer v. Wal-Mart Stores E., LP, 2007 WL 4577579, at *3 (Del. Super. 2007); Cooke v. Murphy, 2013 WL 6916941, at *6 (Del. Super. 2013) aff’d, 99 A.3d 226 (Del. 2014). 2 For example, in Baird v. Owczarek, the trial judge awarded mediation fees to the

defendant, the prevailing party, because the mediation failed, the parties negotiated

in good faith during mediation and the plaintiff did not accept the offer, the

mediator’s fee was reasonable, and the jury awarded no damages to the plaintiff.5

6. Here, the mediation agreement signed by Plaintiffs and Defendant

provides that the mediator’s fee is to be divided equally between both sides. The

Court finds no reason to disturb this equitable division.

IT IS SO ORDERED.

Jan R. Jurden, President Judge

5 Baird v. Owczarek, 2013 WL 4721375 (Del. Super. 2013) rev’d on other grounds, 93 A.3d 1222 (Del. 2014). 3