Ingram v. Key

ON PETITION TO TRANSFER

PER CURIAM.

Donald and Joyce Ingram filed a personal injury suit against Danny S. Key IL. The Ingrams rejected Key's pre-trial settlement offer of $10,000. The jury returned a verdict in favor of Key.

Key filed a motion to tax costs pursuant to Ind.Trial Rule 68. That rule mandates recovery of certain costs by the defendant if the plaintiff rejects the defendant's pretrial settlement offer but obtains a judgment in a lesser amount.

In his T.R. 68 motion, Key alleged costs of $10,460.68, including attorney fees. The Hendricks County Circuit Court granted the motion, and the Ingrams appealed.

The Court of Appeals reversed the award of costs. Ingram v. Key (1992), Ind.App., 594 N.E.2d 477. It ruled TR. 68 does not mandate the award of costs where judgment is for the defendant. It also concluded attorney fees are not costs recoverable under TR. 68.

The Court of Appeals viewed Ind.Trial Rule 54(D) as controlling where judgment is for the defendant. T.R. 54(D) generally allows recovery of costs by the party prevailing at trial

We agree with the Court of Appeals' analysis. We grant Appellee's "Petition for Transfer" and summarily affirm the Court of Appeals.

All Justices concur except GIVAN, J., who votes to grant transfer and affirm the trial court.