Century Insurance Co. Ltd. and the Public School System are the plaintiffs and counter claimants in this case against GBI and PSS.
GBI and the Commonwealth Development Authority are the counter defendants.
The case was heard on Oct. 30, 2008. PSS legal counsel Karen Klaver appeared on behalf of the school system while attorney Douglas Cushnie represented GBI.
In his order, Wiseman said “GBI cannot establish themselves as the prevailing party and simply having established that PSS was liable for breaching the agreement is not sufficient.”
Wiseman said BGI’s argument that CDA’s monetary jury award equates with GBI being the prevailing party is no longer valid, although not consequential.
Wiseman said GBI did not have to plead attorney’s fees as an element of damages and its total request was unreasonable.
The court holds that “a prevailing party may be the party prevailing in interest and not necessarily the prevailing person. It is the party who has made a claim against the other, and has successfully maintained it.”
Wiseman said GBI prevailed in the issue of liability because PSS was found to have breached the contract, but GBI’s evidence was not sufficient to submit the issue of damages to the jury.
The court determined that GBI is not the prevailing party and it would be unreasonable to award the company attorney’s fees pursuant to the settlement agreement.
Court records showed that GBI sought partial summary judgment on the issue of whether PSS breached its contractual duty to interplead the remaining funds from Phase 1 of a school project in the amount of $804,049.73.
On Aug. 29, 2008, the court granted GBI’s motion finding that PSS did breach the agreement when it failed to interplead the funds.
PSS then sought judgment as a matter of law to GBI, asserting that GBI failed to present sufficient evidence to show that GBI was harmed by PSS’s breach.
The court granted the motion of PSS.
The second phase of the trial continues with the remaining parties — PSS and the Commonwealth Development Agency.
GBI requested attorney’s fees and costs pursuant to its settlement agreement with PSS.
GBI contends that because PSS was held liable for breaching the agreement when the court granted summary judgment in favor of GBI, it is the prevailing party.
But PSS argued that GBI cannot be defined as the prevailing party because GBI prevailed on the question of liability.
PSS also argued that the motion was untimely.
The court holds that the motion filed by GBI was timely but GBI cannot show that it is the prevailing party in the action.
Wiseman said the Commonwealth Rules of Civil Procedure require the motion for an attorney’s fees and costs to be filed and served no later than 14 days after entry of judgment.
GBI did not file its motion requesting attorney’s fees until Sept. 25, 2008 which is more than the 14-day requirement.
