2005 Idaho Code - 12-120 — ATTORNEY\'S FEES IN CIVIL ACTIONS

                                  TITLE  12
                           COSTS AND MISCELLANEOUS
                           MATTERS IN CIVIL ACTIONS
                                  CHAPTER 1
                                    COSTS
    12-120.  ATTORNEY'S FEES IN CIVIL ACTIONS. (1) Except as provided in
subsections (3) and (4) of this section, in any action where the amount
pleaded is twenty-five thousand dollars ($25,000) or less, there shall be
taxed and allowed to the prevailing party, as part of the costs of the action,
a reasonable amount to be fixed by the court as attorney's fees. For the
plaintiff to be awarded attorney's fees, for the prosecution of the action,
written demand for the payment of such claim must have been made on the
defendant not less than ten (10) days before the commencement of the action;
provided, that no attorney's fees shall be allowed to the plaintiff if the
court finds that the defendant tendered to the plaintiff, prior to the
commencement of the action, an amount at least equal to ninety-five percent
(95%) of the amount awarded to the plaintiff.
    (2)  The provisions of subsection (1) of this section shall also apply to
any counterclaims, cross-claims or third party claims which may be filed after
the initiation of the original action. Except that a ten (10) day written
demand letter shall not be required in the case of a counterclaim.
    (3)  In any civil action to recover on an open account, account stated,
note, bill, negotiable instrument, guaranty, or contract relating to the
purchase or sale of goods, wares, merchandise, or services and in any
commercial transaction unless otherwise provided by law, the prevailing party
shall be allowed a reasonable attorney's fee to be set by the court, to be
taxed and collected as costs.
    The term "commercial transaction" is defined to mean all transactions
except transactions for personal or household purposes. The term "party" is
defined to mean any person, partnership, corporation, association, private
organization, the state of Idaho or political subdivision thereof.
    (4)  In actions for personal injury, where the amount of plaintiff's claim
for damages does not exceed twenty-five thousand dollars ($25,000), there
shall be taxed and allowed to the claimant, as part of the costs of the
action, a reasonable amount to be fixed by the court as attorney's fees. For
the plaintiff to be awarded attorney's fees for the prosecution of the action,
written demand for payment of the claim and a statement of claim must have
been served on the defendant's insurer, if known, or if there is no known
insurer, then on the defendant, not less than sixty (60) days before the
commencement of the action; provided that no attorney's fees shall be allowed
to the plaintiff if the court finds that the defendant tendered to the
plaintiff, prior to the commencement of the action, an amount at least equal
to ninety percent (90%) of the amount awarded to the plaintiff.
    The term "statement of claim" shall mean a written statement signed by the
plaintiff's attorney, or if no attorney, by the plaintiff which includes:
    (a)  An itemized statement of each and every item of damage claimed by the
    plaintiff including the amount claimed for general damages and the
    following items of special damages: (i) medical bills incurred up to the
    date of the plaintiff's demand; (ii) a good faith estimate of future
    medical bills; (iii) lost income incurred up to the date of the
    plaintiff's demand; (iv) a good faith estimate of future loss of income;
    and (v) property damage for which the plaintiff has not been paid.
    (b)  Legible copies of all medical records, bills and other documentation
    pertinent to the plaintiff's alleged damages.
    If the plaintiff includes in the complaint filed to commence the action,
or in evidence offered at trial, a different alleged injury or a significant
new item of damage not set forth in the statement of claim, the plaintiff
shall be deemed to have waived any entitlement to attorney's fees under this
section.
    (5)  In all instances where a party is entitled to reasonable attorney's
fees and costs under subsection (1), (2), (3) or (4) of this section, such
party shall also be entitled to reasonable postjudgment attorney's fees and
costs incurred in attempting to collect on the judgment. Such attorney's fees
and costs shall be set by the court following the filing of a memorandum of
attorney's fees and costs with notice to all parties and hearing.
    (6)  In any small claims case resulting in entry of a money judgment or
judgment for recovery of specific property, the party in whose favor the
judgment is entered shall be entitled to reasonable postjudgment attorney's
fees and costs incurred in attempting to collect on the judgment. Such
attorney's fees and costs shall be set by the court following the filing of a
memorandum of attorney's fees and costs with notice to all parties and an
opportunity for hearing. The amount of such attorney's fees shall be
determined by the court after consideration of the factors set out in rule
54(e)(3) of the Idaho rules of civil procedure, or any future rule that the
supreme court of the state of Idaho may promulgate, but the court shall not
base its determination of such fees upon any contingent fees arrangement
between attorney and client, or any arrangement setting such fees as a
percentage of the judgment or the amount recovered. In no event shall
postjudgment attorney's fees exceed the principal amount of the judgment or
value of property recovered.