Middlebrooks v. International Indemnity

670 So. 2d 740, 95 La.App. 3 Cir. 1364, 1996 La. App. LEXIS 665, 1996 WL 95116
CourtLouisiana Court of Appeal
DecidedMarch 6, 1996
DocketNo. 95-1364
StatusPublished
Cited by6 cases

This text of 670 So. 2d 740 (Middlebrooks v. International Indemnity) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Middlebrooks v. International Indemnity, 670 So. 2d 740, 95 La.App. 3 Cir. 1364, 1996 La. App. LEXIS 665, 1996 WL 95116 (La. Ct. App. 1996).

Opinion

liDOUCET, Chief Judge.

This is an appeal from a lower court judgment taxing jury costs against defendant-appellant, International Indemnity Company (International), and taxing court costs equally between defendant-appellant, International, and defendant-appellee, State Farm Automobile Insurance Company (State Farm). The record reveals the following facts:

On August 24, 1994, the plaintiffs, Jerry and Effie Middlebrooks, filed suit for damages arising out of an automobile accident. Named as defendants in their petition |2were International Indemnity Company, and its insured, Peggy Deville, as well as the plaintiffs’ own underinsured motorist carrier, State Farm Automobile Insurance Company. On September 23, 1994, State Farm filed a cross-claim against both Deville and her insurer, International. In answering the original petition, International and Deville requested a trial by jury. On April 18, 1995, International and Deville filed a motion to waive trial by jury. On April 21, 1995, the plaintiffs filed a motion to fix for jury trial.

On May 19,1995, International and Deville negotiated a settlement agreement with the plaintiffs. The agreement stated that International would pay its policy limit of $10,000 [742]*742to the plaintiffs and also pay all court costs incurred up to May 19, 1995. In exchange, the plaintiffs would release International and Deville from further liability. International also obtained a release from State Farm stating that State Farm would relinquish any right it may have to the $10,000 paid by International to the plaintiffs. State Farm, however, did not release Deville from the cross-claim.

International tendered the check to the plaintiffs who rejected it and refused to settle according to their agreement. International and Deville filed a motion to enforce the settlement agreement. After hearing, the trial court found that there was no agreement and denied the motion. International and Deville sought a supervisory writ to this Court. On June 20, 1995, one day prior to trial, this Court granted the writ and reversed the trial court finding the settlement agreement valid and enforceable. Therefore, the only remaining claims were the Middle-brooks’ claim against their own insurer, State Farm, and State Farm’s cross-claim against Deville.

On the morning of trial, June 21, 1995, Deville disclosed, for the first time, that she had filed bankruptcy proceedings in federal court several months beforehand. The record reveals that no party to this lawsuit, not even Deville’s own attorney, was awarejyjof this fact until that time. Since trial could not go forward against Deville under the federal bankruptcy law, the suit was settled the morning of trial. State Farm paid the plaintiffs $5,000 in addition to $5,000 they had previously paid. State Farm also dismissed its cross-claim against Deville. The jury, which was already empaneled and present for trial, was dismissed.

At that point, the only issue left before the trial court was the apportionment of court costs, including jury costs. The parties could not agree as to the allocation and apportionment of these costs. As a result, both State Farm and International filed a Motion to Tax Costs. After a hearing on the matter, the trial judge assessed International with one-half of all of the plaintiffs’ costs, both prior and subsequent to the May 19, 1995 settlement, all costs attributed individually to International, and $1,650.80 in jury costs. The trial judge also assessed State Farm one-half of all of the plaintiffs’ costs, both prior and subsequent to the May 19, 1995 settlement, plus all costs attributed individually to State Farm. International and Deville appealed claiming that the trial court abused its discretion by casting them with one-hundred percent of the jury costs plus one-half of all of the plaintiffs costs both prior and subsequent to the May 19, 1995 settlement, contrary to the settlement agreement.

JURY COSTS

The appellants assert that the trial court abused its discretion in assessing jury costs against International since International did not request a jury trial and settled the case prior to the date of trial.

The trial court assessed all of the jury costs, $1,650.80, against International. It found that the conduct of International’s client, Deville, in withholding information as to a pending bankruptcy proceeding in federal court, warranted the assessment of Injury costs against International although International did not request the jury trial and had settled the case prior to trial.

La.Code Civ.P. art. 1920, concerning the assessment of costs, reads as follows:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

Furthermore, the court, in Laughlin v. Breaux, 515 So.2d 480, 485 (La.App. 1 Cir.1987), stated the following regarding the assessment of costs:

The trial court’s assessment of costs will not be disturbed unless there is an abuse of discretion. Johnson v. Hendrix Mfg. Co., Inc., 475 So.2d 103 (La.App. 2nd Cir.1985). The prevailing party is not taxed with costs unless in some way he incurred additional costs pointlessly or engaged in other conduct which justified an assessment of costs against that litigant. Johnson, 475 So.2d at 107.

[743]*743La.R.S. 13:3049(B)(2)(d) states, in pertinent part:

(d) Any deposit made as herein provided shall be returned to the party making such deposit and any bond filed shall be can-celled in the event that the matter in which trial by jury has been requested has been tried, settled, determined, or otherwise disposed of for any reason, without having been tried by a jury.

In Fernandez v. Smith, 559 So.2d 905 (La.App. 4 Cir.1990), the court correctly held that the above statute must be read in connection with La.Code Civ.P. art. 1734, which provides for the fixing of a bond to cover jury costs, and La.Code Civ.P. art. 1734.1 which provides for a cash deposit for jury costs in lieu of posting a bond. Accordingly, La.R.S. 13:3049(B)(2)(d), as set forth above, requiring return of the deposit when settlement is reached, means “return of the deposit remaining after payment of all cost accrued.” Id. at 907.

... it is obvious that the legislative intent is to have the party requesting trial by jury pay for the cost, not only of the actual jury |,shut also for the summoning and attendance of the members of the venire.

Id.

In the instant case, the plaintiffs requested a trial by jury on April 21, 1995. The case was subsequently settled prior to trial. Under La.R.S. 13:3049(B)(2)(d), the plaintiffs should be cast with all jury costs since the case was settled after the costs of a jury were incurred.

Further, in Busalacchi v. Vogel, 429 So.2d 217, 223 (La.App. 4 Cir.1983), the court stated:

‘[T]he underlying principle of Code and jurisprudence is that the party whose behavior unjustifiably causes costs to be incurred ought to pay them.’

The trial court stated, in its oral reasons for judgment, that International “knew or should have known” that its client had previously filed for bankruptcy.

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Bluebook (online)
670 So. 2d 740, 95 La.App. 3 Cir. 1364, 1996 La. App. LEXIS 665, 1996 WL 95116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/middlebrooks-v-international-indemnity-lactapp-1996.