Print Friendly SENATE BILL NO. 1045 – Civil action, atty fees, excptn
SENATE BILL NO. 1045
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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
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 - 2007
IN 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-
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) Except as provided in for
9 personal injury cases and those cases subject to the provisions of subsection s
10 (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
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 the claimant plaintiff, 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
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
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
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
There is no negative fiscal impact to the general fund.
Name: Sen. Tim Corder
STATEMENT OF PURPOSE/FISCAL NOTE S 1045