Bishop v. Progressive Direct Ins. Company ( 2019 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
NICHOLAS J. BISHOP,
C.A. No. Kl4C-l 1-004 WLW
Plaintiff,
V.
PROGRESSIVE DIRECT INS.
COMPANY, a foreign corporation,
and ENCOMPASS INDEMNITY
COMPANY, a foreign corporation,
Defendants.
Submitted: April 26, 2019
Decided: May 3, 2019
ORDER
Upon Plaintiff’S Motion for Imposition of Prejudgment
Interest, Expert Fees and Court Costs.
Gram‘ea' in part,' Dem``ed in part.
Williarn D. Fletcher, Jr., Esquire of Schrnittinger & Rodriguez, P.A., Dover,
Delaware; attorney for Plaintiff.
Daniel P. Bennett, Esquire of Mintzer Sarowitz Zeris Ledva & Meyers, LLP,
Wilmington, Delaware; attorney for Defendant Progressive Direct Insurance
Company.
Arthur D. Kuhl, Esquire of Reger Rizzo & Darnell, LLP, Wilmington, Delaware;
attorney for Defendant Encompass Indemnity Company.
WITHAM, R.J.
Nicholas J. Bishop v. Progressive Direct Ins., et al.
C.A. No. K14C-11-004 WLW
May 3, 2019
Upon consideration of the plaintiffs motion for costs and prejudgment interest,
the defendant's partial opposition thereto, and the record of this case, it appears that:
l. The plaintiff, Nicholas Bishop (hereinafter “Bishop”), seeks an award of
prejudgment interest after having successfully obtained a jury verdict against the
Defendant Progressive Direct Insurance Company (hereinafter “Progressive”)
pursuant to 10 Del. C. § 2301(d).l Bishop also seeks an award of costs,2 and expert
witness fees and costs,3 against Progressive and Defendant Encompass Indemnity
Company (hereinafter “Encompass”) pursuant to 10 Del. C. § 8906 and Superior
Court Civil Rule 54 (hereinafter “Rule 54"). The total amount sought by the Plaintiff,
after recalculations, is 5336,666.28.4
2. Bishop’s policy limits with Progressive, and Encompass were both
1 Pl. Mot. at 3 (Bishop moves this Court to award $28,750.00 in prejudgment interest and an
additional $15.75 per day after March 15, 2019 that the judgement remained unpaid.).
2 See Pl. Ex. H. (Bishop initially calculated his Rule 54 costs, not associated with expert’s
fees and costs, to be approximately $2,3690.90, broken down as follows:
(a) Court Filing Fees for LexisNexis services: $2,119.90;
(b) Prothonotary (Trial Fee): $150.00; and
© Sheriff & Insurance Commissioner: $100.00.
Bishop later conceded that costs amounting $75.00 for January 2017 and March 2019 jury lists are
not recoverable and “recalculated” his Rule 54 costs at $2,121.15. See Pl. Reply at 11 8. However, this
is mathematically impossible ($2,119.90 - $75.00 = $2,044.90). As a result, the adjusted total for
Bishop’s filing costs is $2,044.90. Based on that figure, the new adjusted total for Bishop’s Rule 54
costs is $2,294.90 ($2,044.90 + $100.00 + $150.00)).
3 See Pl. Ex. H (Bishop calculated 10 Del. C. § 8906 and associated Rule 54 costs to be
$5,871.38.).
4 $28,750.00 + $5,871.38 + $2,044.90 = $36,666.28.
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$100,000.00 per person/$300,000.00 per accident. Prior to trial, in 2014, Bishop
offered to settle his under-insured motorist claim (hereinafter “UIM”) against
Progressive for $100,000. Progressive rejected Bishop’s offer and the matter went to
trial. After a trial, the jury awarded Bishop $250,000, but as a result of the $50,000
collected before trial from the tortfeasor’s policy limits, the actual amount of the
judgment was $200,000.
3. The prevailing party in a civil action is entitled to be awarded court costs,5
which often includes expert witness fees.6 Generally speaking, the decision to award
costs is left to the discretion of the trial court.7 Additionally, in certain circumstances,
that same party is entitled to an award of prejudgment interest.8
4. Concerning Rule 54 costs, not associated with expert’s fees and costs, the
Defendants, aside from an objection to the LexisNexis format, do not object to the
majority of filing costs Bishop is due.9 The Defendants only object to costs associated
5 Super. Ct. Civ. R. 54(d).
6 10 Del. C. § 8906.
7 Enrique v. State Farm Mut. Auto. Ins. Co., 2010 WL 2636845, at *1 (Del.Super.), an"d 16
A.3d 938 (Del. 2011) (Table) (citing Donovan v. Delaware Water & Air Resources Comm'n, 358
A.2d 717, 722-23 (Del. 1976)).
8 See 6 Del. C. § 2301(d).
9 The Defendants object to the format Bishop presented, detailing his filing costs. The
Defendants assert that the format provided does not represent a detailed listing of the precise
documents that are listed as filings on Bishop’s LexisNexis filing. But Pl. Reply Ex. 2 appears to be
the standard LexisNexis print out.
Nicholas J. Bishop v. Progressive Direct Ins., et al.
C.A. No. Kl4C-l 1-004 WLW
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with substitution of counsel filing totaling $33.00.10
5. This Court has permitted prevailing parties to recover LexisNexis filing
costs in the past.ll In light of this, and the lack of additional objections on behalf of
the Defendants, the Court will initially award Bishop $2,011.90 for costs, not
associated with expert fees and costs, pursuant to Rule 54.
6. $3 3 .00 remains in disputed costs associated with two substitution of counsel
fees Bishop incurred when two of his former attorneys in this litigation applied for,
and were appointed to, the bench of the Delaware Superior Court in 2015 and 2017.
Notwithstanding the Defendants’ failure to cite statutory or case law demonstrating
those costs as unreasonable, Bishop’s former attorneys decided to apply for judicial
positions independent of the litigation. As such, the Court finds that it would be
unreasonable to assign the Defendants responsibility for Bishop’s substitution of
counsel filing fees, as the Court views such awards would effectively sanction the
Defendants for the career choices of Bishop’s former attorneys. As a result, the Court
uses its discretion and denies awarding Bishop those filing costs, amounting to
$33.00.
7. Thus, after conducting a thorough examination of Bishop’s listed costs, the
Court awards $2,01 1.90 in costs, not associated with expert’s fees and costs, pursuant
10 D. Reply at 1[ 6.
ll Cooke v. Murphy, 2013 WL 6916941, at *4 (Del. Super. Nov. 26, 2013) (citing Reinke v.
Furbush, 2011 WL 7063367, at *1 (Del. Super. Dec. 1, 2011)); see also Mia'cap v. Sears, Roebuck
and Co., 2004 WL 1588343, at *3 (Del. Super. May 26, 2004).
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to Rule 54(d).
8. Turning now to costs associated with experts fees and costs pursuant to Rule
54 and 10 Del. C. § 8906, Bishop seeks $5,871.38. The Defendants do not object to
Dr. Govatos’ $1,750.00 expert witness fee, nor $775.00 for videographer services.
Accordingly, the Court awards Bishop $1,750.00 for Dr. Govatos’ expert witness fee
and $775.00 for the videographer’s service fee.
9. However, the Defendants do object to two costs associated with expert fees
and costs: (l) Dr. Pilkington’s $2,500 fee for video deposition testimony and (2) a
$846.38 fee for transcription services transcribing Dr. Pilkington’s video deposition.
The Defendants contend that the $2,500 fee is excessive and recommend a fee of
$1,200. They further assert Bishop is not entitled to both the $846.38 transcription
costs and the $775.00 videographer charge.12
10. This Court does not have a “fixed formula” to determine reasonable expert
fees.13 “The fees for witnesses testifying as experts shall be fixed by the court in its
discretion, and such fees so fixed shall be taxed as part of the costs in each case and
12 McKinley v. Schaea'el, 2009 WL 4653782, at *1 (Del. Super. Nov. 30, 2009) (citing Gress
v. Viola, 2007 WL 1748657, at *2 (Del. Super. May 31, 2007) (holding that “awarding costs for the
videotaping of a deposition introduced at trial and the preparation of the transcript are duplicative,
and therefore both are not permitted.”).
13 Ambrosio v. Drummond, 2017 WL 2544603, at *1 (Del. Super. June 12, 2017) (citing
Dean¢Seeney v. State Farm Mut. Auto. Ins. Co., 2007 WL 3380119, at *2 (Del. Super. Apr. 19,
2007)); see also Silwinski v. Duncan, 608 A.2d 730, 1992 WL 21132, at *3 (Del. Jan. 15, 1992)
(Table).
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shall be collected and paid as other witness fees are now collected and paid.”14 An
award of expert testimony is usually intended to cover the costs related to in-court
trial testimony, but it may also be used to cover the costs of deposition testimony that
is utilized at trial.15
1 1. When determining an appropriate fee to award medical experts, this Court
frequently utilizes guidance provided by the Medico-Legal Affairs Committee of the
Medical Society of Delaware.”16 Under the Committee's 2006 recommendation, “an
appropriate fee range for a deposition lasting up to two hours is $1,000 ~ $2,000.”17
In this case, adjusting for inflation using the Bureau of Labor Statistics' consumer
price index calculator, a reasonable fee for a deposition lasting up to two hours in
2019 is $1,272.00 to $2,544.00.18
14 10 Del. C_ § 8906.
15 Henry v. State Farm Mut. Auto. Ins. Co., 2017 WL 4271205, at *3 (Del. Super. Sep. 25,
2017).
16 Henry, 2017 WL 4271205, at *5 (citing Enrique, 2010 WL 2636845, at *1).
17 Ia'. (citing Medico-Legal Affairs Committee, Recommended Guidelines for Medical Expert
Fees (March 2006)).
111 Id. See also U.S. Dep't of Labor, Bureau of Labor Statistics, CPI Inflation Calculator,
https://www.bls.gov/data/inflation_calculator.htm (last visited April 30, 2019) (entering $ 1 ,000 and
$2,000 and comparing March 2006 to March 2019). Cf. Smith v. Paul J. Renzi Masonary, 2016 WL
1591030, at *2 (Del. Super. Mar. 24, 2016) (finding that rate for two hour deposition in 2015 Was
$l,058.50 - $1,905.30). The Smith court compounded the average annual percentage increases in
consumer price index for medical care sector from January 1995 through December 2015 by using
the calculator provided by the U .S. Dep’t of Labor, available at
http://data.b1s-gov/timeseries/CURROOOOSAM?output_view=pct_l 2mths. (last visited March 23,
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12. With those guidelines in mind and also considering that Dr. Pilkington’s
testimony lasted 1 hour and 48 minutes and dealt with complex medical issues, the
Court finds his fee is reasonable and, thus, will award $2,500.00.19
13. The Court must also decide whether Bishop may recover the transcription
fee for Dr. Pilkington’s video deposition. Bishop contends that his case is
distinguishable from this Court’s precedent and asserts that the transcript here is not
merely a duplication as it contains the objections made by counsel during the
deposition and was further entered into evidence during trial to establish a record to
review regarding those deposition objections.20 Under these specific circumstances,
and with an awareness of previous precedent, the Court agrees with Bishop that this
case carves out a narrow exception to the general rule. As a result, the Court awards
Bishop $846.38 for the transcription fee.
14. The Court would be remiss if it did not note that Defendants’ reading of
Banks v. J&NHickman Family Limitea’ Partnership,21 and this Court’s general rule
is correct. This Court has consistently held that transcription costs are duplicative of
2016).
19 See Henry, 2017 WL 4271205, at *5 (this Court held that an expert was entitled to a
reasonable fee of $2000 for a video deposition that lasted 54 minutes, and regarded less complexity.).
20 Pl. Reply at 11 10.
21 2006 WL 240641 (Del. Super. Jan. ll, 2006).
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the videographer costs.22 However, it appears to the Court that Banks is silent as to
any mention that the rule controls in situations where transcripts are presented to the
Court for the purpose of establishing a reviewable record concerning redacted
objections made at a deposition
15. In this case, the parties’ objections at Dr. Pilkington’s deposition are
recorded in the transcript, but appropriately redacted from the video deposition.
Without this record, there would be nothing on record, in the event that one of the
parties chose to appeal this Court’s decision. Since a reviewable record is always
preferable to a void record, the Court finds, in this narrow exception, the transcript
and video of Dr. Pilkington’s deposition are not duplicative and its production fee is
recoverable by Bishop. Therefore, the Court awards Bishop $864.38 for the
transcription costs associated with Dr. Pilkington’s video deposition.
16. As a result of the Court’s decisions regarding experts fees and costs, the
Court awards Bishop $5,871.38.
17. Finally, the Court reaches Bishop’s assertion that he is entitled to $28,750
in prejudgment interest. Progressive contends that because the Order for Entry of
Judgment issued by this Court on March 15, 2019 entered judgment against
Progressive for $100,000, Bishop’s settlement offer of 3100,000 did not exceed the
22 Banks, 2006 WL 240641, at *2 (citing T olson v. Chorman, 2005 WL 1953 039, at *2 (Del.
Super. July 12, 2005). See also Kerr v. Onsusko, 2004 WL 2744607, at *1 (Del. Super. Oct. 20,
2004); Mia'cap, 2004 WL 1588343, at * 4; Fellenbaum v. Ciamaricone, 2002 WL 31357917, at *6
(Del. Super. Oct. 16, 2002); Cimino v.. Cherry, 2001 WL 589038, at *2 (Del. Super. May 24, 2001);
and Cubberly v. Orr, 1995 WL 654144, at *2 (Del. Super. ).
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statutory j udgment amount required by section 2301(d).23 Bishop contends that while
Progressive argues that the jury’s damages award as entered by the Court must be
compared with any settlement proposal pursuant to section 2301(d), it misinterpreted
section 2301(d). Bishop argues rather it is the jury’s award only that is compared,
regardless of any allocation, and if the jury’ s award is greater than the section 2301(d)
settlement proposal, the statutory requirements for prejudgment interest are
satisfied.24
18. If a plaintiff wins a tort action for compensatory damages, 6 Del. C. §
2301(d) requires the addition of prejudgment interest to a final judgment,
commencing from the date of injury.25 That statute applies only if, prior to trial, the
plaintiff had made a written settlement demand, valid for a minimum of thirty days,
in an amount less than the entered judgment.26 If the elements of section 2301(d) are
met, prejudgment interest is calculated based on the damages awarded by the jury, not
the existence of, or terms of, coverage.27 The Delaware General Assembly enacted
section 2301(d) to encourage settlements by “encouraging parties to make fair offers
23 D. Reply at 11 l (Progressive is the only defendant subject to possible prejudgment interest
liability.).
24 Pl. Reply at 11 l.
25 Rapposelli v. State Farm Mut. Auto. Ins. Co., 988 A.2d 425, 429 (Del. 2010).
26 6 Del. C. § 2301 (d); see also Bullock v. State Farm Mut. Auto. Ins. Co., 2012 WL1980806,
at *6 (Del. super. May 18, 2012) (citing Enn'que, 2011 wL 1004604, at *2).
27 Bullock, 2012 wL 1980806, at *6 (citing Rapposelli, 988 A .2<1 31427_29).
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sooner, with the effect of reducing court congestion.”28
19. ln Ballock, a case conceded by Progressive as applicable, the plaintiff
demanded the UIM policy limits of $100,000 that was rejected by the defendants.29
The jury found for the plaintiff and awarded $128,000.30 The judgment entered based
upon the jury award was capped at the contractual limits of the State Farm policy, i.e.
$100,000.31 State Farm argued that since the capped amount is the same amount as
the policy limits demanded, the requirements of 6 Del. C. § 2301(d) had not been
met.32 This Court rejected that argument.33
20. The Court further finds the guidance of the Delaware Supreme Court in
Christina Care Health Services v. Crist34 instructive. ln Crist, the plaintiff demanded
a settlement in the amount of $1.25 million in separate demands to separate
28 Id. at *7 (citing Enrique, 2011 wL 1004604, at *3).
29 Ia'. at *1.
30 Ia'. at *3.
31 Ia'.
32 BullOCk, 2012 WL 1980806, at *7.
33 Ia'. at *7-8 (The Bullock court disagreed based on (1) the Delaware legislature’s intent in
passing 6 Del. C. § 2301 (d) and (2) the defendant did not demonstrate that section 2301 (d) “clearly
and convincingly” violated the U.S. and Delaware Constitutions. At the hearing, Progressive invited
the Court to overrule the President Judge’s decision in Bullock. The Court declines to do so.).
34 956 A.2d 622 (Del. 2008).
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defendants.35 After trial, the jury awarded the plaintiff $2 million that was allocated
between both defendants in a 60-40 split, making one defendant responsible for $1.2
million while the other was responsible for 11§800,000.36 This Court denied the
plaintiffs prejudgment interest request on the grounds that each of those amounts
were less than the plaintiff s $1.25 million settlement demand,37 On appeal, however,
our Supreme Court reversed, and ordered prejudgment interest be imposed holding
that the allocation of the jury award between defendants was irrelevant in determining
whether the damages awarded were greater than the settlement demands.38
21. In this case, and after carefully considering the parties’ arguments that
accompany these particular facts, the Court finds that the Plaintiff`` s settlement offer
in 2014 is statutorily sufficient and, thus, is entitled to prejudgment interest.
22. The Court views this case as akin to cases were juries have allocated
fault.39 Here, the total judgment entered for damages awarded to the Plaintiff was
$250,000 minus $50,000 already received, for a total of $200,000.40 The Court then
allocated $100,000 to Progressive and $100,000 to Encompass, based solely on the
33 Crist, 956 A.2d at 624.
36 Id. at 625.
37 Id.
313 Id. at 629-30.
39 The Court notes that in this case, the jury did not allocate fault among the Defendants.
411 6 Del. C. § 2301(d) (emphasis added).
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Defendants’ UIM policy limits. As a result, the Court finds the Plaintiff’ s settlement
proposal to Progressive in 2014 satisfied the plain, and unambiguous, statutory
language and requirements pursuant to 6 Del. C. § 2301(d) and thus an award of
prejudgment interest is appropriate.
23. In the alternative, Progressive argues it should not be subject to
prejudgment interest beyond January 26, 2017 due to the litigation’s numerous delays
it blames on the Plaintiff and the Court.‘11 In support, Progressive cites Getty Oil Co.
v. Catalytic, Inc.,‘12 and argues that pursuant to Getty, the Court may reduce any
prejudgment interest if there is a delay in proceeding to trial or judgment that a
defendant is not responsible.43 Progressive specifically points to the following as
delays pursuant to Getty: ( l) Bishop asking for a mistrial during the initial trial, rather
than proceed to a jury verdict;44 (2) the initial sitting judge’s retirement;45 (3) Bishop’s
former attorney’s appointment to the Delaware Superior Court;46 (4) the Court’s
41 D. Mot. at 11 2-5.
42 509 A.2d 1123, 1124 (Del. super. 1986).
43 D. Reply at 11 2.
44 1a 3111 2.
43 Id. at 11 3.
46 D. Reply at 11 3.
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schedule;47 and (5) Bishop’s continuance request on December 6, 2018.48 Bishop
contends that those claims are “factually inaccurate”49 and misstate Getly.
24. In Delaware, prejudgment interest is available as a matter of right, but the
right is not absolute.30 lf a plaintiff has delayed the prosecution of an action, the Court
may, in its discretion, reduce the amount of prejudgment interest recovered.31
25. The Court agrees with Bishop that Progressive has misstated Getty. In
Getly, the Delaware Supreme Court noted that the type of delay warranting a
suspension of prejudgment interest might involve: (l) “delay without valid reason;”32
(2) “intractableness;”33 (3) “delay that is the ‘fault’ or ‘responsibility’ of a plaintiff or
his attorney;”34 or (4) “delay was ‘caused’ by the plaintiff.”33 And while the Getty
court iiirther found that the tolling time of prejudgment interest was not suspended
47 Id. at 11 4.
44 Id. 3111 5_
49 Pl. Reply at 11 3.
30 Getty, 509 A.2d at 1124 (citing Moskowitz v. Mayor and Coancil of Wilmington, 391 A.2d
209, 210 (Del. 1978)).
31 Id.
32 Id. at 1126 (citing Dorsey v. State ex. rel. Mulrine, 301 A.2d 516, 518-19 (Del. 1972)).
33 Id. (citing Maryland Casually Co. v. Hanby, 301 A.2d 286, 288 (Del. 1973)).
34 Id. (citing Moskowitz, 391 A.2d at 211 (citing Hanby, 301 A.2d at 288)).
33 Id. at l 124 (citing E.M. Fleischmann Lumber Corp. v. Resources Corp. Int ’l, 114 F. Supp.
843, 844(D.De1. 1953)).
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between setting of trial date and commencement of trial on date set, the Supreme
Court’s decision was silent as to any reference to delays caused by a court.36
26. The Court is unpersuaded by Progressive’ s argument and finds that despite
Progressive’s claims regarding Bishop’s and this Court’s fault for the delays in
litigation, the record contains no evidence that Bishop acted in any way that justifies
reducing prejudgment interest.
27. First, regarding the mistrial, it appears that it may have been asked for, and
granted by this Court, because Progressive’s expert failed to limit his opinions to
those set forth in his pretrial report. The Court finds it difficult, if not impossible, to
assign this as fault to Bishop, nor does the Court agree with Progressive that Bishop
asking for a mistrial was a delay in the spirit of Getty.
28. Second, the Court finds that Bishop is not at fault for the delay his former
attorneys caused by applying for, and accepting an appointment to, the Delaware
Superior Court bench. lt is true that this action delayed the litigation to a degree, but
the Court finds it does not rise to the level of fault required by Getly. Here, the Court
finds it unlikely that Bishop was consulted by his former attorney regarding his career
aspirations and, assuming arguendo he was, it was the attorney’s decision
independent of the litigation, This kind of action does not appear to be contemplated
by Getty.
29. Third, the second trial was continued, on at least one occasion, because of
56 Geny, 509 A.2d at 1128.
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the Court’s calendar. The Court finds it would be unreasonable to penalize Bishop
and find him at fault for delays caused by the business and priorities of this Court.
The Court emphatically states that delays of that nature do not warrant the suspension
of prejudgment interest pursuant to Getly.
30. Finally, Progressive contends Bishop’s December 2018 continuance
request establishes a delay pursuant to Get),‘y.37 Again, the Court disagrees. ln this
case, Bishop requested a continuance: ( l) only after being notified by the Court that
the trial, due again to the Court’s schedule, would face significant interruptions due
to other matters considered by the Court to be higher priority and (2) only after
consulting with the Defendants. lt is unfathomable to the Court how Bishop was at
fault for that. Furthermore, the Defendants did not appear to object to Bishop’s
continuance request at that time, but yet now cite it as a Hail Mary argument. Thus,
the Court cannot, and will not, consider the business and priorities of the Court, and
a continuance request that arises in light of those scheduling conflicts as Bishop’s
fault.38 This is certainly not the type of fault that Getty envisioned.
3 1 . After a thorough examination of the specific circumstances presented here,
the Court finds Bishop was not at fault for litigation delays that rise to the standard
articulated in Getty. Furthermore, since Progressive has not objected to the
37 D. Reply at 11 5.
38 The Court questions Progressive's representation of the December 2018 continuance as
“circumstances beyond Progressive's control. " See Id. Progressive's infers that Bishop did not consult
with Progressive and that he unilaterally moved for the continuance.
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prejudgment interest calculations in the event the Court did not reduce prejudgment
interest,39 the Court awards Bishop prejudgment interest, per his calculations, in the
amount of $28,750.00. An additional $15.75 should be awarded everyday after
March 15, 2019 that the judgment remains unpaid.
CONCLUSION
32. F or the reasons stated above, Bishop’s motion is GRANTED IN PART
AND DENIED IN PART. The Court grants prejudgment interest in the amount of
$28,750.00 with an additional $15.75 per day after March 15, 2019 that the judgment
remains unpaid. Second, the Court grants costs, not associated with expert’s fees and
costs, in the amount of $2,01 1.90. Finally, the Court grants $5,871.38 as expert’s fees
and costs. In total, the Court awards Bishop $36,633.28 in prejudgment interest and
costs.
IT IS SO ORDERED.
/S/ Will£``am L. Wf£harn. Jr.
Resident Judge
WLW/dmh
39 Pl.'s Mot. at 11 2-3. (Bishop calculates the prejudgment interest as of March 15, 2019 as
$28,750. The interest rate was calculated by the Plaintiff as 5.75% (.75 + 5 % (years) per annum. 5.75
x 100,000 (amount the jury’s award was reduced by previous advance) equals $5,750 per annum
interest. $5,750 x 5 = $28,750. The per diem interest was calculated by Bishop is $15.75 per day
($5,756.00/365)).
16