Harrison v. Herbin

241 S.E.2d 108 (1978)

35 N.C. App. 259

Gertrude Jeffers HARRISON v. Betty Burnett HERBIN.

No. 7718DC91.

Court of Appeals of North Carolina.

February 7, 1978.

*109 Max D. Ballinger, Greensboro, for plaintiff.

Henson & Donahue by Daniel W. Donahue and Kenneth R. Keller, Greensboro, for defendant.

BROCK, Chief Judge.

Plaintiff contends that the trial judge abused his discretion in denying plaintiff's motion that attorney's fees be taxed against defendant in this action. Plaintiff argues that, as illustrated by questions asked by the trial judge during argument on the motion, the judge by denying the motion, apparently intended to penalize plaintiff for bringing her action in district court rather than in magistrate's court, for requesting a jury trial, for refusing to seek damages from her own insurance carrier, for refusing defendant's offer of settlement, and as being, in general, responsible for this litigation. We find no merit in plaintiff's arguments.

G.S. 6-21.1 authorizes the presiding judge, in his discretion, to allow a reasonable attorney fee for the successful party in a personal injury or property damage suit where the damage recovery is $2,000.00 or less. The rationale behind the statute was stated by our Supreme Court in Hicks v. Albertson, 284 N.C. 236, 239, 200 S.E.2d 40, 42 (1973).

"The obvious purpose of this statute is to provide relief for a person who has sustained injury or property damage in an amount so small that, if he must pay his attorney out of his recovery, he may well conclude that it is not economically feasible to bring suit on his claim. In such a situation the Legislature apparently concluded that the defendant, though at fault, would have an unjustly superior bargaining power in settlement negotiations."

It remains a fact, however, as set out in the express language of the statute, that the allowance of fees is in the discretion of the presiding judge. Upon examining the record in this case, we cannot say that the judge abused his discretion in denying the award of fees. Defendant's insurance carrier communicated an offer of settlement to plaintiff in the amount of $200.00, just $50.00 less than the ultimate damage award at trial. We perceive of no exercise of any unjustly superior bargaining power on the part of the defendant. While the statute is aimed at encouraging injured parties to press their meritorious but pecuniarily small claims, we do not believe that it was intended to encourage parties to refuse reasonable settlement offers and give rise to needless litigation by guaranteeing that counsel will, in all cases, be compensated.

Therefor we hold that plaintiff has shown no abuse of discretion by the trial judge. The judgment denying plaintiff's motion for an award of attorney fees is

Affirmed.

MARTIN and CLARK, JJ., concur.