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S1045................................................by JUDICIARY AND RULES CIVIL ACTIONS - Amends existing law relating to attorney's fees in civil actions to clarify exceptions to general application; and to revise terminology. 01/23 Senate intro - 1st rdg - to printing 01/24 Rpt prt - to Jud
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-ninth Legislature First Regular Session - 2007IN THE SENATE SENATE BILL NO. 1045 BY JUDICIARY AND RULES COMMITTEE 1 AN ACT 2 RELATING TO ATTORNEY'S FEES IN CIVIL ACTIONS; AMENDING SECTION 12-120, IDAHO 3 CODE, TO CLARIFY EXCEPTIONS TO GENERAL APPLICATION AND TO REVISE TERMINOL- 4 OGY. 5 Be It Enacted by the Legislature of the State of Idaho: 6 SECTION 1. That Section 12-120, Idaho Code, be, and the same is hereby 7 amended to read as follows: 8 12-120. ATTORNEY'S FEES IN CIVIL ACTIONS. (1) Exceptas provided infor 9 personal injury cases and those cases subject to the provisions of subsections10 (3)and (4)of this section, in any action where the amount pleaded is twenty- 11 five thousand dollars ($25,000) or less, there shall be taxed and allowed to 12 the prevailing party, as part of the costs of the action, a reasonable amount 13 to be fixed by the court as attorney's fees. For the plaintiff to be awarded 14 attorney's fees, for the prosecution of the action, written demand for the 15 payment of such claim must have been made on the defendant not less than ten 16 (10) days before the commencement of the action; provided, that no attorney's 17 fees shall be allowed to the plaintiff if the court finds that the defendant 18 tendered to the plaintiff, prior to the commencement of the action, an amount 19 at least equal to ninety-five percent (95%) of the amount awarded to the 20 plaintiff. 21 (2) The provisions of subsection (1) of this section shall also apply to 22 any counterclaims, cross-claims or third party claims which may be filed after 23 the initiation of the original action. Except that a ten (10) day written 24 demand letter shall not be required in the case of a counterclaim. 25 (3) In any civil action to recover on an open account, account stated, 26 note, bill, negotiable instrument, guaranty, or contract relating to the pur- 27 chase or sale of goods, wares, merchandise, or services and in any commercial 28 transaction unless otherwise provided by law, the prevailing party shall be 29 allowed a reasonable attorney's fee to be set by the court, to be taxed and 30 collected as costs. 31 The term "commercial transaction" is defined to mean all transactions 32 except transactions for personal or household purposes. The term "party" is 33 defined to mean any person, partnership, corporation, association, private 34 organization, the state of Idaho or political subdivision thereof. 35 (4) In actions for personal injury, where the amount of plaintiff's claim 36 for damages does not exceed twenty-five thousand dollars ($25,000), there 37 shall be taxed and allowed to theclaimantplaintiff, as part of the costs of 38 the action, a reasonable amount to be fixed by the court as attorney's fees. 39 For the plaintiff to be awarded attorney's fees for the prosecution of the 40 action, written demand for payment of the claim and a statement of claim must 41 have been served on the defendant's insurer, if known, or if there is no known 42 insurer, then on the defendant, not less than sixty (60) days before the com- 43 mencement of the action; provided that no attorney's fees shall be allowed to 2 1 the plaintiff if the court finds that the defendant tendered to the plaintiff, 2 prior to the commencement of the action, an amount at least equal to ninety 3 percent (90%) of the amount awarded to the plaintiff. 4 The term "statement of claim" shall mean a written statement signed by the 5 plaintiff's attorney, or if no attorney, by the plaintiff which includes: 6 (a) An itemized statement of each and every item of damage claimed by the 7 plaintiff including the amount claimed for general damages and the follow- 8 ing items of special damages: (i) medical bills incurred up to the date of 9 the plaintiff's demand; (ii) a good faith estimate of future medical 10 bills; (iii) lost income incurred up to the date of the plaintiff's 11 demand; (iv) a good faith estimate of future loss of income; and (v) prop- 12 erty damage for which the plaintiff has not been paid. 13 (b) Legible copies of all medical records, bills and other documentation 14 pertinent to the plaintiff's alleged damages. 15 If the plaintiff includes in the complaint filed to commence the action, 16 or in evidence offered at trial, a different alleged injury or a significant 17 new item of damage not set forth in the statement of claim, the plaintiff 18 shall be deemed to have waived any entitlement to attorney's fees under this 19 section. 20 (5) In all instances where a party is entitled to reasonable attorney's 21 fees and costs under subsection (1), (2), (3) or (4) of this section, such 22 party shall also be entitled to reasonable postjudgment attorney's fees and 23 costs incurred in attempting to collect on the judgment. Such attorney's fees 24 and costs shall be set by the court following the filing of a memorandum of 25 attorney's fees and costs with notice to all parties and hearing. 26 (6) In any small claims case resulting in entry of a money judgment or 27 judgment for recovery of specific property, the party in whose favor the judg- 28 ment is entered shall be entitled to reasonable postjudgment attorney's fees 29 and costs incurred in attempting to collect on the judgment. Such attorney's 30 fees and costs shall be set by the court following the filing of a memorandum 31 of attorney's fees and costs with notice to all parties and an opportunity for 32 hearing. The amount of such attorney's fees shall be determined by the court 33 after consideration of the factors set out in rule 54(e)(3) of the Idaho rules 34 of civil procedure, or any future rule that the supreme court of the state of 35 Idaho may promulgate, but the court shall not base its determination of such 36 fees upon any contingent fees arrangement between attorney and client, or any 37 arrangement setting such fees as a percentage of the judgment or the amount 38 recovered. In no event shall postjudgment attorney's fees exceed the principal 39 amount of the judgment or value of property recovered.
STATEMENT OF PURPOSE RS 16634 The purpose of this legislation is to clarify who is entitled to attorney's fees. Until the Supreme Court decision found in Gillihan v Gump it was generally understood that in civil actions the prevailing party could recover attorney's fees and in personal injury cases only the plaintiff was able to recover attorney's fees. The Supreme Court rendered a split decision in Gillihan and opened the door for future court speculation as to the legislative intent of Idaho Code 12-120. This legislation will provide the means for the legislature to reduce or eliminate future litigation and clarify legislative intent. FISCAL IMPACT There is no negative fiscal impact to the general fund. Contact Name: Sen. Tim Corder Phone:332-1336 STATEMENT OF PURPOSE/FISCAL NOTE S 1045