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Landis v. Hannaford Brothers Co.

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 111
Docket:	Han-99-674
on Briefs:	April 14, 2000
Decided:	June 15, 2000




	[¶1]  Hannaford Brothers Co. (Hannaford) appeals from a judgment of
the Superior Court (Hancock County, Mead, C.J.) granting Patricia Landis
certain costs associated with litigation between the parties.  On appeal,
Hannaford contends that the court erred in awarding fees because Landis
was not the prevailing party, and in the alternative contends that the amount
awarded was improper because the court failed to offset the award by
medical expenses prepaid by Hannaford under 24-A M.R.S.A. § 2426(2)
(2000), and improperly included fees charged by an expert witness.  Finding
no preserved error, we affirm the judgment.
	[¶2]  The facts are not in dispute.  In 1996, Patricia Landis slipped on
a wet floor in the Ellsworth Shop 'n Save, damaging her knee.  Landis filed
suit, claiming the injury was the proximate cause of Hannaford employees'
failure to properly mop up the floor.  After a trial, the jury retired to
consider its verdict.  During its deliberations, the jury asked the presiding
justice to inform it what amount Hannaford had already paid toward Landis's
medical expenses.  Although it is not clear from the record, the parties
agree that the trial justice instructed the jury that it should not concern
itself with this question.  The jury then requested a read-back of certain
testimony that included an account of Hannaford's payments to Landis for
her injury, and this testimony was read to the jury.  The testimony was that
Hannaford had already paid approximately $6000 to Landis to cover the cost
of surgery.{1}
	[¶3]  The jury returned a verdict finding Hannaford negligent, but
awarded no damages.  The jury verdict form reflected that the
eight-member jury found as follows:
	Hannaford was negligent:								8-0
	Hannaford's negligence was the proximate case of
		Landis's injury:										6-2

	Landis was not negligent:								7-1
	Zero ($0) awarded as compensation for injuries:		8-0
Judgment was entered in accordance with the verdict.  There is no dispute
with respect to the jury's verdict.{2}
	[¶4]  Landis submitted a bill of costs.  Hannaford objected on the
grounds that Landis had not "prevailed," and that in any event it was
entitled to offset the amounts it had already paid Landis, which exceeded
her costs, under 24-A M.R.S.A. § 2426.  In addition, Hannaford specifically
objected to the inclusion of certain costs, including the cost of the
deposition of a Dr. Kuffler (who did not testify at trial), but did not object to
the inclusion of the cost of the deposition of a Dr. Mainen.  After considering
briefs regarding the interpretation of the statute, the court awarded costs to
Landis in full with the exception of an $18 charge for mileage involving
Landis's counsel's attendance at the trial management conference. 
Hannaford then filed this appeal.
	[¶5]  Rule 54 of the Maine Rules of Civil Procedure provides that
"[c]osts shall be allowed as of course to the prevailing party, as provided by
statute and by these rules, unless the court otherwise specifically directs." 
M.R. Civ. P. 54(d).
	[¶6]  In Dodge v. United Services Automobile Association, 417 A.2d
969 (Me. 1980), we articulated a "functional analysis" for determining who
is the prevailing party for Rule 54(d) purposes.  Id. at 974-75.  In order to
determine who has prevailed, the trial court "must look at the lawsuit as a
whole to determine which party was the 'winner' and which the 'loser.'"  Id.
at 975.  Although not explicitly stated in Dodge, the nature of this inquiry is
essentially one of fact.  If the court is to look at the lawsuit "as a whole," the
trial court justice is in the best position to apply this test.  Accordingly, we
review that court's determination of who is the prevailing party for clear
error.{3}  See Robards v. Cotton Hill Assocs., 1997 ME 157, ¶ 10, 713 A.2d
952, 955; Hicks v. City of Westbrook, 649 A.2d 328, 329 (Me. 1994).
	[¶7]  Hannaford contends that, when viewing the lawsuit as a whole,
Landis was not the prevailing party because she received no award of
damages.  Hannaford would have us apply a bright-line rule. 
Notwithstanding Hannaford's claim that the trial court did not apply the
"functional analysis" test, Hannaford effectively suggests that the single fact
that no damages were awarded prevents a finding that Landis prevailed
when viewing the lawsuit "as a whole."  We have addressed this issue
That she [the plaintiff, Eileen] cannot recover from Hall [the
defendant] on the judgment because she has been compensated
through a settlement may be Hall's good fortune but should not
negate what Eileen has obtained-a determination that Hall's
negligence resulted in harm or injury to Eileen, that injury being
the loss of a viable cause of action.   Eileen is entitled to her
Hoitt v. Hall, 661 A.2d 669, 674 (Me. 1995).  "'[T]he determination of a
successful party . . . is to be based upon success upon the merits, not upon
damages.'"  Id. (quoting Perez v. Baker Packers, a Div. of Baker Int'l Corp.,
694 S.W.2d 138, 143 (Tex. App. 1985).  Thus, a lack of a monetary award to
a party does not necessarily preclude a determination that the party has
	[¶8]  Here, although Landis was not awarded damages, the trial justice
could reasonably conclude that she nevertheless prevailed in the lawsuit. 
The jury determined 8 to 0 that Hannaford was negligent, and 6 to 2 that
this negligence proximately caused her injury.  In addition, the jury found 7
to 1 that Landis was not negligent.  Given these conclusions by the jury on
the merits and Hannaford's prior payment to Landis, we cannot say that the
court's conclusion that Landis had prevailed was clearly erroneous.
	[¶9]  Hannaford contends that it should be able to offset any costs it
may be ordered to pay Landis against payments it has already made to her
for her injury under 24-A M.R.S.A. § 2426.  The interpretation of a statute is
a question of law and is reviewed de novo.  See Cook v. Lisbon Sch. Comm.,
682 A.2d 672, 676 (Me. 1996).
	[¶10]  In its entirety, section 2426 provides:
Advance payments

	1. No payment or payments made by any person, or by his
insurer by virtue of an insurance policy, on account of bodily injury or
death or damage to or loss of property of another, shall constitute an
admission of liability or waiver of defense as to such injury, death, loss
or damage, or be admissible in evidence in any action brought against
the insured person or his insurer for damages, indemnity or benefits
arising out of such injury, death, loss or damage unless pleaded as a
defense to the action.

	2. All such payments shall be credited upon any settlement with
respect to the same damage, expense, or loss made by, or upon any
judgment rendered therefor in such an action against, the payor or his
insurer, and in favor of any person to whom or on whose account
payment was made.
24-A M.R.S.A. § 2426 (emphasis added).  Stated simply, costs are not "on
account of bodily injury or death or damage to or loss of property."  Rather,
costs are "on account of the lawsuit."  Thus, costs are not "with respect to
the same damage, expense, or loss."
	[¶11]  Moreover, we disagree with Hannaford's contention that not
allowing an offset against costs does not advance the policy of the statute. 
Although not explicitly stated, it seems clear that the statute is in place to
encourage the payment of damages while a matter remains in dispute.  The
provision, however, does not allow for the payor to be reimbursed in the
event the damages are ultimately less than what has already been paid out.  A
defendant or potential defendant already runs the risk that it may prepay in
excess of a settlement or award of damages (before the issue of costs even
enters the mix).  Hannaford's claim that not allowing an offset against costs
is contrary to the policy behind the statute is unpersuasive.
	[¶12]  In sum, section 2426 is concerned with encouraging
defendants to prepay actual damages.  It is unrelated to costs, and the court
did not err when it found that Hannaford was not entitled to offset the costs
awarded against the amount it had already paid to Landis.
	[¶13]  Finally, Hannaford contends that the fee charged by Dr. Mainen
for attending a deposition is not allowable in Landis's bill of costs because
Dr. Mainen testified at trial.  Hannaford is correct that the cost of an expert
witness for attending a deposition is not allowable.  See Poland v. Webb,
1998 ME 104, ¶ 14, 711 A.2d 1278, 1281.  We have repeatedly held,
however, that where an issue has not been properly preserved, we will not
consider it on appeal.  See Irving Oil Corp. v. Maine Aviation Corp., 1998 ME
16, ¶ 5, 704 A.2d 872, 874 (holding we will not review an issue that is not
preserved, even if it is of constitutional dimension).  Hannaford did not
specifically object to the inclusion of Dr. Mainen's deposition fee.  Thus,
because Hannaford did not properly object, it has failed to preserve the issue
in this appeal.{4}
	The entry is:
Judgment affirmed.
Attorneys for plaintiff: David F. Szewczyk, Esq. William E. Macdonald, Esq. Macdonald Chase & Szewczyk 700 Mt. Hope Avenue 440 Evergreen Woods Bangor, ME 04401 Attorney for defendant: Frederick F. Costlow, Esq. Richardson, Whitman, Large & Badger, P.C. P O Box 2429 Bangor, Me 04402-2429
FOOTNOTES******************************** {1} . This evidence was solicited on cross-examination by Landis's attorney, without objection by Hannaford. {2} . Landis speculates in her brief that the jury awarded her no damages because it took into account the amount she had already received. Although this conclusion is not unlikely, it is, nevertheless, speculative. Hannaford suggests, among other things, that the zero damage award might be attributable to the disagreement between jury members regarding proximate cause and Landis's own negligence, but this too is speculative. {3} . Our review of such a finding in Dodge was performed with considerable deference. See id. {4} . Hannaford contends that it "did file a timely objection to the Bill of Costs." Hannaford did not, however, object to the cost of Dr. Mainen's deposition fee and provide a basis for the court to disallow it.