Bishop v. Washburn, No. 18-1-10 Rdcv (Teachout, J., Jan. 17, 2012)

[The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.] STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Rutland Unit Docket No. 18-1-10 Rdcv

Griffin Bishop, et al.,

Plaintiffs

v.

Ronald Washburn, et al.,

Defendants

DECISION

Plaintiffs’ Motion to Tax Costs and Interest, filed August 5, 2011

After Plaintiffs accepted an offer of judgment purs uant V.R.C.P. 68, this court entered judgment in favor of each plaintiff on August 8, 20 11. Plaintiffs now move to tax costs and interest. Plaintiffs are represented by Joel P. Ian nuzzi, Esq. Defendants are represented by Andrew C. Boxer, Esq.

Costs

The parties dispute whether the offer of judgment m ade by Defendants was inclusive of costs. The full text of the offer of judgment is as follows:

Rule 68 Offer of Judgment

The Defendants offer to take judgment against them on April Bishop’s claims in the amount of $32,500.

The Defendants offer to take judgment against them on Griffin Bishop’s claims in the amount of $17,500.

This issue is governed by the Vermont Supreme Cour t’s decision in Rule v. Tobin

, 168 Vt. 166 (1998). Rule addressed whether an offer of judgment under V.R.C .P. 68 was inclusive or exclusive of costs and attorney’s fees . The Vermont Supreme Court, following the U.S. Supreme Court’s decision in Marek v. Chesny , 473 U.S. 1 (1985), held that where an offer of judgment is silent as to whe ther it includes costs, the plaintiff is allowed to obtain costs in addition to the judgment amount specified in the offer. Rule

, 168 Vt. at 171.

Here, Defendants’ offer of judgment does not refer ence costs. Nevertheless, Defendants argue that by using the word “claims” th ey intended to include costs becausePlaintiffs original “claims” as filed in the compla int included a demand for “all costs and

other relief as this court deems just and proper.”

Defendants’ argument stretches the meaning of the w ord “claims” too far. By any reasonable measure, Defendants’ offer of judgment w as silent as to whether it was inclusive of costs. They cannot now rely on one sen tence out of Plaintiff’s complaint to remedy their own apparent neglect in drafting an of fer of judgment that failed to specifically address the issue of costs one way or the other. See Erdman v. Cochise Cty

., 926 F.2d 877, 880 (9th Cir. 1991) (offers of judgme nt are construed against the drafter). As Defendants’ offer of judgment was silent as to c osts, Plaintiffs are entitled to petition

for costs.

Prejudgment Interest

Plaintiffs seek prejudgment interest on medical bil ls. An award of prejudgment interest is required if the damages, including medi cal bills, are “liquidated or capable of ready assessment” Bull v. Pinkham Eng’g Assocs , 170 Vt. 450, 463 (2000). The parties dispute whether Plaintiffs’ medical bills meet this standard.

In Smedberg v. Detlef’s Custodial Serv.

, Inc. , 2007 VT 99, 182 Vt. 349, the Vermont Supreme Court addressed the issue of whethe r medical expenses were “reasonably ascertainable.” Id . at ¶ 37. The Court concluded that medical expense s are reasonably ascertainable because “[t]he damage meas ure for medical expenses is simply

the reasonable value of the services rendered to th e plaintiff.” Id . Therefore, an award of prejudgment interest is mandatory in the case of me dical expenses that flow from a tortfeasor’s wrongs. Id . at ¶ 38.

Defendants, however, dispute that Plaintiffs should be awarded prejudgment interest because Plaintiffs’ claims for damages hav e never been formally adjudicated, unlike the damages in Smedberg . This is true, but it ignores that this case was r esolved by an offer of judgment. Once again, the court is left with an offer of judgment which is silent as to whether or not it includes prejudgment interest.

Examining the purpose of prejudgment interest helps answer this question. “Prejudgment interest on compensatory damage awards is meant to restore—to the extent possible—harmed plaintiffs to the financial positio n they would have enjoyed but for the

tort.” Smedberg , 2007 VT 99, at ¶ 39. Prejudgment interest, unlike costs or attorney’s fess, is a fundamental part of Plaintiffs’ substant ive claim. The Court concludes, therefore, that any award of prejudgment interest f or Plaintiffs’ medical expense was included in Defendants’ offer of judgment. This is a fair reading of the word “claims” as used in the offer of judgment.

Many other courts examining this issue in similar c ontexts have reached the same conclusion. Courts note that because prejudgment in terest is intended to be compensatory and not punitive, it is logical that it be included in a lump sum figure that purports to settle all claims. See, e.g., Encompass, Inc. v. Alford , 444 So. 2d 1085, 1088 (Fla. Dist.Ct. App. 1984) (concluding that “an offer of judgme nt which contains only a single figure

includes all elements of damages attributable to pl aintiff's cause of action, including the damage resulting from deprivation of the use of the money”).

Furthermore, prejudgment interest is only awarded a s to damages that are “liquidated or capable of ready assessment” Bull v. Pinkham Eng’g Assocs , 170 Vt. 450, 453 (2000). Although medical bills fall into this c ategory, Plaintiffs complaint also includes demands for damages that are not readily f ixed, such as pain and suffering. Because the offer of judgment settled all of Plaint iffs’ claims, the court is in no position

to determine what fraction of the settlement was in tended to go towards Plaintiffs’ medical expenses. See, e.g., Hughes v. Burlington N. R.R. , 545 N.W.2d 318, 322 (Iowa 1996) (holding that when an offer of judgment is si lent as to prejudgment interest, the court will not add it because the precise amount of interest would be indeterminable).

Unlike costs, prejudgment interest goes to the meri ts of Plaintiffs’ claims and is intended to be compensatory. The most logical readi ng of the offer of judgment, which included a lump sum that settled all claims, is tha t it included prejudgment interest. Plaintiffs’ request for prejudgment interest on med ical expenses is denied.

ORDER

Plaintiff’s Motion is granted as to costs and denied

as to prejudgment interest.

Dated this 17 th day of January, 2012.

________________________ Hon. Mary Miles Teachout Superior Court Judge