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Patterson v. State Farm Mutual Automobile Insurance Co.

Superior Court of Delaware, New Castle

October 31, 2012

ANEITA PATTERSON, Plaintiff,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.

Submitted: July 6, 2012

Upon Defendant's Motion for Costs – GRANTED, in part.

Prothonotary (civil) Colin Shalk, Esquire Kenneth Roseman, Esquire

ORDER

Fred Silverman, Judge

1. This is a breach of contract case involving Defendant's alleged failure to cover Plaintiff's medical bills stemming from an August 4, 2009 car crash. Defendant filed a $10, 000 offer of judgment on May 7, 2012, which Plaintiff refused. On June 26, 2012, after a two-day trial, the jury returned a defense verdict. Defendant timely filed a motion for costs in accordance with Superior Court Civil Rules 54 and 68.

2. Defendant wants $3, 000 for Dr. James Bonner's expert video deposition, and $355 for the related video services. Additionally, Defendant seeks $1, 900 for Dr. Bakst's trial deposition, and $297.88 for related transcription services.

3. Plaintiff does not contest Dr. Bonner's video recording costs. But, Plaintiff argues Dr. Bonner's expenses are excessive for a half-hour deposition held at the doctor's own office. Plaintiff cites Drayton v. Price, [1] where the court reduced a $2, 175 fee to $1, 100 for substantially the same reasons Plaintiff urges here.

4. Plaintiff claims Dr. Bakst's costs are not recoverable because the doctor testified as a fact witness. Similarly, Plaintiff contests Dr. Bakst's testimony transcription costs. Plaintiff offers no authority, but Plaintiff is correct that Dr. Bakst's costs for testifying as a fact witness are not recoverable. A prevailing party cannot recover costs for an expert testifying as a fact witness.[2]

5. Because it was a defense verdict, Superior Court Civil Rule 68 is inapplicable .[3] Superior Court Civil Rule 54(d), however, permits costs "as of course to the prevailing party upon application to the Court within ten (10) days of the entry of final judgment." Amounts awarded are a matter of judicial discretion.[4]

6. Having received a "zero" verdict, Defendant is the prevailing party and "as a matter of course, " will be awarded costs within reason.[5] The court finds that $3, 000 for a half-hour deposition, without travel, is excessive. Because the deposition was short and in Dr. Bonner's own office, the court reduces the requested costs to $1, 500. Therefore, in addition to the video services, Defendant is awarded $1, 855 in costs.

7. As the prevailing party, Defendant is GRANTED $1, 855 in costs for Dr. Bonner. Defendant's request for Dr. Bakst's costs is DENIED.

IT IS SO ORDERED.


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