Attorney fees affirmed in trucking dispute; COA declines to bar such awards

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An appellate panel Tuesday affirmed an award of attorney fees under a standard industry agreement and declined an invitation to strip Indiana trial courts of the ability to enter such judgments.

The Indiana Court of Appeals affirmed Lake Superior Judge Calvin D. Hawkins’ award of about $12,000 in legal fees to a trucking company that successfully defended a lawsuit a shipper filed claiming that its trailers weren’t returned in a timely manner and it was therefore entitled to per diem expenses.

In Evergreen Shipping Agency Corp., v. Djuric Trucking, Inc., 45A03-1302-CC-40, the panel rejected Evergreen’s claim that the award of legal fees was barred by the doctrine of res judicata because Djuric failed to win a claim for attorney fees sought under the Indiana frivolous lawsuit statute. Djuric did, however, prevail on the merits in the case brought by Evergreen.

Here, Djuric sued for legal fees provided under the Uniform Intermodal Interchange and Facilities Access Agreement, an industry standard accord that applies to more than 90 percent of shipping arrangements in the United States.

“Djuric’s ability to recover under the UIIA could not have been determined in the prior action,” Judge Nancy Vaidik wrote for the panel. “The UIIA allows the prevailing party to recover reasonable attorney’s fees. In the prior action, the trial court had to determine who the prevailing party would be. Only after Djuric was found to be the prevailing party could it seek attorney’s fees pursuant to the UIIA.

“Djuric could not have reasonably argued that the trial court erred by failing to award it attorney’s fees based on a theory Djuric had not yet asserted. We cannot say that Djuric waived its claim for attorney’s fees under the UIIA,” Vaidik wrote in the unanimous opinion joined by judges John Baker and Ezra Friedlander.

In a concluding footnote, the panel also rejected a sweeping request from the shipping company.

“Evergreen asks this Court to adopt a new rule divesting trial courts of jurisdiction to award attorney’s fees in circumstances like this,” Vaidik wrote. “We decline to do so.”



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  1. Lori, you must really love wedding cake stories like this one ... happy enuf ending for you?

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