Once the dust settles after a trial victory, practitioners routinely file bill of costs in an effort to recoup litigation expenditures, such as filing and service of process fees, as in De Fulvio v. Holst, 362 A.2d 1098, 1099 (Pa. Super. 1976), (“It is a general rule in our judicial system … that costs inherent in a law suit (sic) are awarded to and should be recoverable by the prevailing party.”). For personal injury attorneys representing plaintiffs, this is one last opportunity to capitalize on a successful claim usually taken on a contingency basis and net additional hundreds or sometimes thousands of dollars depending on the circumstances of the case. For defense attorneys representing an insured or policyholder, this will mark the first and last time in a litigation continuum that may have lasted years to recoup a small percentage of the costs associated with defending a claim that ultimately proved to be meritless. From the moment the jury foreperson returns to the courtroom with a verdict, counsel typically learn the winner, the loser, and in turn which party will have the opportunity to seek reimbursement of such costs provided by the local rules of civil procedure. In Philadelphia, Local Rule 227.5 provides:
Costs shall be allowed to a prevailing party except as otherwise provided by law or unless waived by a party who would otherwise be entitled thereto. A prevailing party shall include:
• A party in whose favor a final judgment is entered;
• A party in favor of whom a non pros is entered; or
• Defendants for whom judgment is entered, or who are dismissed from the action, even though the plaintiff ultimately prevails over the remaining defendants.
A bill of costs shall itemize those costs claimed to be due. The costs claimed may include:
• Record Costs. All costs of record appearing on the docket including but not limited to the Office of Judicial Records fees and costs, the Sheriff’s fees and costs, and the jury fee.
• Nonrecord Costs. Costs not appearing of record, including but not limited to: Statutory witness fees. The bill shall set forth the names of witnesses, the dates of their attendance, the number of miles actually travelled by them, and the place from which mileage is claimed; costs of subpoenas for appearance in court, including costs of service thereof; costs of maps in eminent domain actions; fees of appraisers, auditors and examiners where necessary to the action; notary fees; attorney fees if expressly authorized by statute or stipulation; and filing fee for the bill of costs.
• Such other costs as are allowable by law.
But, what happens when both parties leave the courtroom believing they were the victor? What happens when defense counsel leaves the courtroom after no damages were awarded in a motor vehicle accident case and notifies their carrier of a trial win, only to learn days later that plaintiff’s counsel is petitioning the court to alter the jury verdict to reflect a plaintiff victory?
In a case of first impression that was appealed from the Court of Common Pleas of Philadelphia County, the Superior Court addressed that very issue. In Oliver v. Irvello, 2017 Pa. Super. 184, No. 3036 EDA 2016 (June 13), a three-member appellate court heard the appeal of a plaintiff who had elected a limited tort option on his motor vehicle insurance policy and then filed a personal injury action against a defendant after a May 26, 2011, auto accident. Following trial, the jury found that: the defendant was negligent; the defendant’s negligence was a factual cause of the plaintiff’s harm; and the plaintiff did not sustain a serious impairment of a body function as a result of the accident. See 75 Pa.C.S.A. Section 1705(a)(1)(A, (The Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL) provides that a driver who purchases limited tort coverage “may seek recovery for all medical and other out-of-pocket expenses, but not for pain and suffering or other nonmonetary damages unless the injuries suffered fall within the definition of ‘serious bodily injury’ as set forth in the policy.”). The trial court subsequently entered a verdict in favor of the defendant.
The plaintiff filed a motion to correct the docket to reflect that he was the winner, asserting that the error on the docket precluded him from recovering costs. The defendant in turn filed a bill of costs. After his motion to correct the record and ensuing motion for reconsideration were denied, the plaintiff appealed arguing that the trial court committed an error of law in denying his motion to correct the record to reflect that he was the verdict winner. The plaintiff argued that he was the “prevailing party” because the jury found the defendant liable even though he could not recover non-economic damages, as in Profit Wize Marketing v. Wiest, 812 A.2d 1270, 1275-76 (Pa. Super. 2002), (“A ‘prevailing party’ is commonly defined as ‘a party in whose favor a judgment is rendered, regardless of the amount of damages awarded.’”); see also 25A Standard Pennsylvania Practice 2d Section 127:8 (defining “prevailing party” as “a party in whose favor a judgment is rendered, regardless of the amount of damages awarded.”).
While several cases in the commonwealth address the issue of the “prevailing party” to which costs may be awarded, none address this issue in the context of a limited tort case. The appellate court found that in order to recover on his claim for noneconomic damages in a limited tort case, the plaintiff was required to prove serious injury. As he was unable to do so, his claim is meritless, as in Oliver, 2017 Pa. Super. at *8-9; but see Bailey v. Pham, 2526 EDA 2015 (filed June 29, 2016), (In reaching its decision, the court did not consider this unpublished appellate decision cited by the plaintiff, wherein a verdict was entered for the defendant after a Philadelphia jury found the defendant in that case negligent, a factual cause of the plaintiff’s harm, and awarded zero dollars in damages to the plaintiff in a 2012 motor vehicle accident case. On appeal, the court declared the plaintiff the verdict winner and that the defendant was “erroneously” recorded as the prevailing party in a “clerical error.” The plaintiff was not a limited tort motorist.). The court reasoned that the defendant was the “prevailing party” in this limited tort case because: “as a limited tort elector, the plaintiff chose not to limit his damages but to restrict his ability to maintain an action for noneconomic damages. This is not a matter of the ‘amount of damages awarded,’ even if zero or nominal; the plaintiff did not prevail because the action could not proceed.”
The MVFRL clearly sets forth, “unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss.”
Although not explicitly stated, the Oliver decision provides defense counsel firm support in seeking costs in limited tort matters where their clients are found negligent and a factual cause of plaintiff’s injuries, but no damages are awarded. As the “prevailing party” in such a circumstance, insurers and their attorneys may now be armed with a new weapon with which to negotiate a favorable settlement or the outright withdrawal of a claim. While many plaintiffs lawyers may have believed they had nothing to lose by bringing a limited tort case with little chance of piercing the tort threshold, they now risk increased financial exposure in the form of defendant’s bill of costs. Oliver may give plaintiffs counsel pause before accepting a limited tort case initially and committing their financial resources and manpower to filing suit. Oliver is no small victory in legal precedent that further distinguishes the viability of suits brought by limited tort motorists compared to full tort. Lawyers accepting limited tort cases of questionable merits due to prior injury history, scant objective evidence of injury, negligible treatment, or any number of other factors should judiciously consider the financial ramifications of taking on such a case in light of Oliver. •