Hubbard v. LUMBERMEN'S MUTUAL CASUALTY COMPANY

211 S.E.2d 544 (1975) 24 N.C. App. 493

John White HUBBARD
v.
LUMBERMEN'S MUTUAL CASUALTY COMPANY.

No. 7423DC936.

Court of Appeals of North Carolina.

February 5, 1975. Certiorari Denied April 2, 1975.

John S. Willardson, North Wilkesboro, for plaintiff-appellee.

Hudson, Petree, Stockton, Stockton & Robinson by R. M. Stockton, Jr., and James H. Kelly, Jr., Winston-Salem, for defendant-appellant.

Certiorari Denied by Supreme Court April 2, 1975.

HEDRICK, Judge.

Defendant first contends the trial court erred in concluding that plaintiff was entitled to recover $25.00 for the damage to the police monitor radio as a "personal effect". The pertinent provision of the insurance policy is as follows:

"COVERAGE E (2)— Personal Effects

(2) To pay for loss caused by fire or lightning to robes, wearing apparel and other personal effects which are the property of the named insured or a relative, while such effects are in or upon the owned automobile."

While the trial judge denominated the police monitor radio as a "personal effect. . . under the terms of the policy", there is no allegation, evidence, or finding that the plaintiff's radio was destroyed by fire or lightning. Therefore, since the record does not support the award of $25.00 for the damage to the radio, the judgment will be modified by eliminating $25.00 therefrom.

The defendant contends the trial court erred in finding and concluding that the plaintiff was entitled to recover $600.00 for the damage to his automobile. The court's findings of fact are conclusive if supported by any competent evidence, and judgment supported by such finding will be affirmed, even though there is evidence contra, or even though some incompetent evidence may also have been submitted. Brooks v. Brooks, 12 N.C.App. 626, 184 S.E.2d 417 (1971). The trial judge accepted plaintiff's testimony as to the value of his automobile before and after the theft and based the award thereon. There is competent evidence in the record to support the court's finding with respect to the value of plaintiff's vehicle, and these findings support the conclusion that the damage to the vehicle was $600.00.

Finally, defendant contends Judge Osborne erred in finding that there was an unwarranted refusal on the part of the defendant to make a higher offer in settlement of the plaintiff's claim and in concluding that the plaintiff was entitled to recover reasonable attorney fees pursuant to G.S. § 6-21.1, which provides:

"Allowance of counsel fees as part of costs in certain cases.— In any personal injury or property damage suit, or suit against an insurance company under a policy issued by the defendant insurance company and in which the insured or beneficiary is the plaintiff, upon a finding by the court that there was an unwarranted refusal by the defendant insurance company to pay the claim which constitutes the basis of such suit, instituted in a court of record, where the judgment for recovery of damages is two thousand dollars ($2,000.00) or less, the presiding judge may, in his discretion, allow a reasonable attorney fee to the duly licensed attorney representing the litigant obtaining a judgment for damages in said suit, said attorney's fee to be taxed as a part of the court costs."

The obvious purpose of this section is to provide relief for a person who has sustained injury or property damage in an amount so small that, if he must pay his attorney out of his recovery, he may well conclude that it is not economically feasible to bring suit on his claim. Hicks v. Albertson, 284 N.C. 236, 200 S.E.2d 40 (1973). This legislation, being remedial, should be construed liberally to accomplish the purpose of the legislature and to bring within it all cases fairly falling within its intended scope. Hicks v. Albertson, supra.

The record in the present case discloses that the amount offered by the defendant in settlement before suit was instituted was less than fifty percent of the damages ultimately determined by the judge. The record also shows that after all the evidence was presented, defendant's counsel advised the judge that $500.00 had been offered to settle the case immediately prior to the beginning of the trial. While the difference between the amount offered before suit was instituted and the amount ultimately found to be the damage to plaintiff's vehicle is only $320.00, it represents a difference of more than one hundred percent. This evidence, coupled with the fact that the defendant offered to settle the case for $500.00 immediately before the trial commenced, is sufficient, in our opinion, to support the finding by the judge that the defendant was not warranted in refusing to make a higher offer of settlement before the plaintiff incurred the expense of employing an attorney to institute suit. Defendant, although it knew plaintiff was demanding that his attorney's fee be taxed as a part of the costs, failed to explain why it was willing to pay $220.00 more immediately before the trial than it was willing to pay before suit was instituted. There is nothing in the record to show that the defendant had any information regarding the damage to the vehicle available to it when it made the $500.00 offer that it did not have when it made the $280.00 offer. The obvious conclusion is that the defendant increased its original offer by eighty percent simply because plaintiff had employed counsel, instituted suit, and demonstrated his willingness to have the court determine the whole matter. The allowance of counsel fees under the authority of G.S. § 6-21.1 is, by express language of that statute, in the discretion of the presiding judge. Callicutt v. Hawkins, 11 N.C.App. 546, 181 S.E.2d 725 (1971). Under the circumstances of this case, we conclude that the defendant has failed to show the trial court abused its discretion in taxing as a part of the costs an attorney's fee in the amount of $200.00.

The result is: the $25.00 awarded for damage to plaintiff's radio is eliminated from the judgment; the judgment awarding $600.00 for damage to the motor vehicle and $200.00 as a fee for plaintiff's attorney, to be taxed as a part of the costs, is affirmed.

Modified and affirmed.

MORRIS and PARKER, JJ., concur.