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Berryman v. Metcalf

Court of Appeals of Washington, Division 1

November 12, 2013

Julie Berryman, Respondent,
Akeem Metcalf et al., Defendants, Farmers Insurance Company of Washington, Appellant

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Appeal from Superior Court King County. Superior Court Cause No: 10-2-02865-0 KNT. Date filed in Superior Court: March 2, 2012. Superior Court Judge Signing: Suzanne Barnett.

Nancy K. McCoid and Nathaniel Justin Ree Smith (of Soha & Lang PS ), for appellant.

Patrick J. Kang and Jason G. Epstein (of Premier Law Group PLLC ), and Howard M. Goodfriend (of Smith Goodfriend PS ), for respondent.

AUTHOR: Becker, J. WE CONCUR: Spearman, A.C.J., Appelwick, J.


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Becker, J.

[177 Wn.App. 650] ¶ 1 The trial court approved as reasonable a total of 468.55 hours billed by two attorneys for taking a minor soft tissue injury case through a short trial de novo, where the defendant did not improve its position after a mandatory arbitration. The court then applied a multiplier of 2.0 because counsel, working on a contingent fee arrangement, substantially risked receiving no compensation or inadequate compensation. Under the circumstances of this unexceptional case, the fee award of nearly $292,000 was an abuse of discretion. We reverse the award of attorney fees and remand for meaningful consideration of what constitutes a reasonable fee. However, we find no abuse of discretion in the trial court's evidentiary rulings and consequently hold that the defendant is not entitled to a new trial.


¶ 2 This case arose from a three-car collision on February 24, 2007. Plaintiff Julie Berryman was in her Chevrolet Caprice, preparing to turn into a driveway. An uninsured driver in a Dodge Caravan rear-ended the Caprice. Another uninsured driver, who was driving a Honda Accord, rear-ended the Caravan and pushed it into Berryman's Caprice. Berryman felt pain in her neck and back that night and sought treatment from a chiropractor two days later. Over the next three and a half years, she continued with chiropractic treatment.

¶ 3 Berryman had underinsured motorist coverage from Farmers Insurance Company of Washington. Berryman received personal injury protection payments of $7,393.47 from Farmers.

[177 Wn.App. 651] ¶ 4 In May 2009, Berryman retained the Premier Law Group PLLC. She signed a contingency fee agreement. Berryman sued the uninsured drivers in superior court in January 2010. The uninsured drivers defaulted. Farmers intervened to assert the defenses the drivers would have presented.

¶ 5 Berryman certified that her claim for damages was not in excess of $50,000. The case was transferred to mandatory arbitration under chapter 7.06 RCW. The arbitration took place on December 10, 2010. The arbitrator awarded Berryman $13,724 in special damages and $22,000 in general damages, for a total of $35,724 in compensatory damages.

¶ 6 Farmers requested trial de novo. Berryman offered to settle for $30,000. Farmers did not accept the offer.

¶ 7 Farmers conceded before trial that according to the police report, the uninsured drivers were at fault. [1] Farmers made no attempt thereafter to prove anyone else was at fault. The issues for trial were causation and whether the medical expenses Berryman claimed were necessary and reasonable. [2]

¶ 8 Farmers retained Dr. Allan Tencer, a University of Washington professor of biomechanical engineering, to testify at trial about the forces involved in the accident. Dr. Tencer prepared a report stating his opinion that " the forces acting on Ms. Berryman's body in this accident appear to be within the range of forces experienced in daily living." [3] Berryman successfully moved pretrial to exclude Dr. Tencer's testimony.

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¶ 9 Farmers also planned to present testimony by Dr. Thomas Renninger, a chiropractor who had examined Berryman before the arbitration. In his original report, Dr. [177 Wn.App. 652] Renninger gave his opinion that in view of the minor nature of the accident, no more than six weeks of treatment was reasonably needed. In an addendum filed after he reviewed Dr. Tencer's report, Dr. Renninger amended his opinion and said that Berryman did not sustain any injury as a result of the accident.

¶ 10 Trial began on Wednesday, December 14, 2011. On that first day, the court announced that all motions in limine by both parties would be granted. One of these was Berryman's motion to prohibit Dr. Renninger from expressing an opinion based on Dr. Tencer's report and to exclude any references by counsel or witnesses to vehicle damage or Tencer's report. Another was Berryman's motion to exclude photographs of Berryman's car. After the jury was selected and sworn, Farmers asked the court to reconsider the order excluding testimony about damage to Berryman's car. Farmers hoped to counter any suggestion that Berryman had been the victim of a high-impact accident by eliciting evidence that the visible damage to her car and its trailer hitch was minimal. The court declined to reconsider, reasoning that property damage was not at issue and " one cannot surmise anything about personal injury from the state of the vehicle." The day ended with both parties making opening statements.

¶ 11 On Thursday, December 15, Berryman presented her case, beginning with Dr. Chinn, one of the chiropractors who treated her. The jury heard Berryman's fiancé and Berryman's mother briefly report their observations about how Berryman's back pain had impaired her everyday activities. A second chiropractor, Dr. Saggau, testified by videotaped deposition. In the opinion of both chiropractors, the accident caused Berryman significant injury, and the treatment expenses she was claiming were reasonable and necessitated by the accident. The day closed with Berryman's testimony.

¶ 12 On Monday, December 19, Farmers presented the defense case. Dr. Renninger testified that he did not consider [177 Wn.App. 653] Berryman's injury " significant." He opined that at most, six weeks of treatment was reasonable, and beyond that Berryman would have been better off to adopt an exercise regimen. The cross-examination emphasized that Dr. Renninger had examined Berryman only once. Counsel brought out the substantial income Dr. Renninger received from doing insurance defense work in car accident cases. After Dr. Renninger testified, Berryman presented rebuttal witness Dr. Bangerter, a chiropractor who testified on the basis of a records review that Berryman had significant and chronic injuries related to the collision that would continue to require at least monthly treatment for up to five years.

¶ 13 On Tuesday morning, December 20, the jury heard closing arguments. Berryman requested damages between $53,000 and $56,000. Farmers argued that a verdict of $7,000 was appropriate. After deliberating for about two hours, the jury awarded Berryman a total of $36,542 in damages. The components were $18,042 for past medical expenses, $2,000 for future medical expenses, and $16,500 for past and future noneconomic damages.

¶ 14 A party who appeals the award in a mandatory arbitration and fails to improve his position on trial de novo must pay the attorney fees incurred by the nonappealing party. RCW 7.06.060(1). If the nonappealing party serves a timely written offer of compromise, the offer replaces the amount of the arbitrator's award for the purpose of determining whether the appealing party has improved his position. RCW 7.06.050(1)(b). Because the jury's verdict exceeded Berryman's offer of compromise, Farmers failed to improve its position at the trial de novo, and the trial court correctly determined that Berryman was entitled to an award of fees and costs. RCW 7.06.060; Niccum v. Enquist, 175 Wn.2d 441, 286 P.3d 966 (2012).

¶ 15 Berryman's two attorneys, Patrick Kang and Jason Epstein, submitted a fee request based on an hourly rate of $300. They presented contemporaneous timekeeping records that had been sent to Berryman as monthly invoices. [177 Wn.App. 654] The records submitted by Kang and Epstein documented a total of 468.55 hours. In keeping with MAR 7.3,

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which limits the award of fees and costs to those incurred after the request for trial de novo is filed, the hours they claimed were all incurred during the period of approximately one year between the request for trial de novo and the entry of judgment, from January 11, 2011, to February 2, 2012. They requested a multiplier of 1.5 to 2.0.

¶ 16 Over Farmers' objections, the court found the claimed hours and rates were reasonable, for a lodestar of $140,000 for preverdict work. The court granted a multiplier of 2.0. The total award was $291,950 in attorney fees (including $11,950 for postverdict work) and $9,317 in costs. The trial court denied Farmers' motion for a new trial. Farmers appeals.


¶ 17 Farmers assigns error to the exclusion of Dr. Tencer's testimony.

¶ 18 Dr. Tencer has been retained frequently as an expert defense witness in similar cases. See Stedman v. Cooper, 172 Wn.App. 9, 292 P.3d 764 (2012); Ma'ele v. Arrington, 111 Wn.App. 557, 562-64, 45 P.3d 557 (2002). The testimony he was prepared to give in this case, as set forth in his report, was similar to the testimony offered by the defendant in Stedman. The trial court's exclusion of Dr. Tencer was consistent with this court's reasoning in affirming the decision to exclude his testimony in Stedman. Following Stedman, we conclude it was not an abuse of discretion to exclude Dr. Tencer's testimony as well as the portions of Dr. Renninger's testimony that referred to and relied on Dr. Tencer's report.

¶ 19 Farmers also assigns error to the trial court's decision to exclude photographs of Berryman's car. The court ruled on the first day of trial that no mention should be made of damage to the car unless Berryman or her witnesses opened the door:

[177 Wn.App. 655] No reference to vehicle damage would be admitted, and that includes asking questions of the plaintiff, that includes asking questions of any other witness regarding what they saw. The property damage is not at issue.
. ...
So, if the plaintiff opens the door by saying, you know, it was a tremendous crash, or, [i]t was a loud bang, or, you know, any other description of the collision that leads the jurors to think this was a serious collision, then the door is open, Mr. Feldmann, and you can pursue it at that point. But otherwise, no. [4]

¶ 20 The next day, Berryman's attorney questioned Dr. Chinn, a chiropractor, about the cause of injury. Dr. Chinn responded that the primary cause " seemed to be the high impact rear end accident that she had about a year earlier." [5] Later, Dr. Saggau, testifying by video deposition, relayed Berryman's report that she " began to turn into the driveway when she heard loud screeching brakes, slam, and was hit from another car from the rear." [6] Although the trial court had made it plain that such remarks would allow Farmers to seek reconsideration of the ruling in limine, Farmers did not timely object or otherwise specifically argue that the chiropractors' comments about a " high impact" accident and a " slam" opened the door to the photographs. [7] We conclude Farmers has waived its objection to the ruling excluding the photographs. See Breimon v. Gen. Motors Corp., 8 Wn.App. 747, 757, 509 P.2d 398 (1973).

¶ 21 Farmers also assigns error to the court's order denying the motion for a new trial. A trial court's decision to deny a new trial is reviewed for abuse of discretion. A.C. v. Bellingham Sch. Dist., 125 Wn.App. 511, 521, 105 P.3d 400 (2004).

[177 Wn.App. 656] ¶ 22 Farmers' motion for a new trial was based almost entirely on the court's exclusion of Dr. Tencer's testimony and the portion of Dr. Renninger's testimony that relied on Tencer's report. Farmers argued a new trial was necessary because " cumulative" error, including keeping the photographs out and

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allowing the " high impact" testimony, unfairly painted a picture of a serious collision that Dr. Tencer's testimony could have rebutted. But Farmers failed to object to the " high impact" testimony as it was given and neglected to ask the trial court to admit the vehicle photographs once the door had been opened. Since the trial court did not commit error as a matter of law by excluding Tencer's testimony and the evidence that flowed from it, we conclude the trial court did not abuse its discretion in denying Farmers' motion for a new trial.


¶ 23 Farmers assigns error to the trial court's award of attorney fees for 468.55 hours at $300 per hour with a multiplier of 2.0. Farmers contends the award is excessive, rewards duplicative and unsuccessful work, and inappropriately applies a multiplier to a standard damages case. We agree.

¶ 24 The general rule in Washington, commonly referred to as the " American rule," is that each party in a civil action will pay its own attorney fees and costs. Cosmopolitan Eng'g Grp., Inc. v. Ondeo Degremont, Inc., 159 Wn.2d 292, 296, 149 P.3d 666 (2006). But trial courts may award attorney fees when authorized " by contract, statute, or a recognized ground in equity." Cosmopolitan, 159 Wn.2d at 297. Here, a statute-- RCW 7.06.060(1)--expressly entitles a nonappealing party in a trial de novo to attorney fees and costs if the appealing party fails to improve his position after requesting a trial de novo.

¶ 25 An appellate court will uphold an attorney fee award unless it finds the trial court manifestly abused its [177 Wn.App. 657] discretion. Discretion is abused when the trial court exercises it on untenable grounds or for untenable reasons. Chuong Van Pham v. Seattle City Light, 159 Wn.2d 527, 538, 151 P.3d 976 (2007). The burden of demonstrating that a fee is reasonable is upon the fee applicant. Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 151, 859 P.2d 1210 (1993).

¶ 26 The trial court signed Berryman's proposed findings of fact and conclusions of law without making any changes except to fill in the blank for the multiplier of 2.0. The findings related to the calculation of the lodestar amount did not address Farmers' detailed arguments for reducing the hours billed to account for duplication of effort and time spent unproductively. The court simply found that the hourly rate and hours billed were reasonable.

¶ 27 " Courts must take an active role in assessing the reasonableness of fee awards, rather than treating cost decisions as a litigation afterthought. Courts should not simply accept unquestioningly fee affidavits from counsel." Mahler v. Szucs, 135 Wn.2d 398, 434-35, 957 P.2d 632, 966 P.2d 305 (1998).

¶ 28 In Mahler, a plaintiff injured in a car accident had settled with the tortfeasor. State Farm, her insurer, demanded to be reimbursed for all the payments furnished to the plaintiff under her coverage for personal injury protection. State Farm rejected the plaintiffs' demand for State Farm's share of the attorney fees incurred in obtaining the settlement with the tortfeasor. The dispute with State Farm went to mandatory arbitration and the plaintiff prevailed. State Farm requested a trial de novo and failed to improve its position. The trial court awarded fees and costs of $32,694.59 pursuant to MAR 7.3, and a larger amount pursuant to Olympic Steamship Co. v. Centennial Insurance Co., 117 Wn.2d 37, 811 P.2d 673 (1991). The Supreme Court determined that Olympic Steamship was not a valid basis for awarding fees under the circumstances. Because the trial court had not explained its ...

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