Nationwide Mutual Insurance Company v. Nall's Newton Tire

Filing 141

ORDER, 128 MOTION for New Trial or, Alternatively, for Remittitur filed by Nationwide Mutual Insurance Company is GRANTED to the extent that the damage award in this case is reduced to $318,500.00. 130 Motion to Tax Costs & Prejudgment I nterest filed by Nall's Newton Tire is GRANTED in part to the extent that Nall's Newton Tire is granted 6% prejudgment interest from 8/15/13 through the date of judgment & costs are taxed in the amount of $5,344.67 as set out. (T he motion is DENIED in part to the extent that the prejudgment interest applies only to the reduced damage award and $398.60 is excluded from the claimed costs.) Nall's Newton Tire is to file a proposed Final Judgment consistent w/this order NLT 12/11/15. 138 Motion for Reconsideration filed by Nationwide Mutual Insurance Company is DENIED as set out. Signed by Judge Callie V. S. Granade on 12/7/2015. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NATIONWIDE MUTUAL
INSURANCE COMPANY,
Plaintiff,
vs.
NALL’S NEWTON TIRE a/k/a
NALL’S NEWTON TIRE
SERVICE, INC.,
Defendant.

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) CIVIL ACTION NO. 14-110-CG-M
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ORDER

This matter is before the Court on the motion of Nationwide Mutual
Insurance Company (“Nationwide”) for new trial or, alternatively for remittitur
(Doc. 128), opposition thereto by Nall’s Newton Tire (“NNT”) (Doc. 129), NNT’s
motion to tax costs and prejudgment interest (Doc. 130), Nationwide’s opposition to
NNT’s motion to tax costs and prejudgment interest (Doc. 134), Nationwide’s reply
in support of new trial or remittitur (Doc. 135), Nationwide’s motion for
reconsideration of order granting NNT leave to file surreply (Doc. 138), NNT’s reply
in support of prejudgment interest (Doc. 139), and NNT’s surreply in opposition to
new trial or remittitur (Doc. 140). As an initial matter, the Court declines to
reconsider the granting of NNT’s leave to file a surreply. The Court has already
ruled on the motion and reviewed NNT’s “surreply” and will not reexamine that
decision here. As to Nationwide’s motion for new trial or remittitur, for reasons

that will be explained below, the Court finds that Nationwide’s motion for
remittitur should be granted to the extent that the damage award will be reduced to
$318,500.00. Lastly, the Court finds below that NNT’s motion for prejudgment
interest should be granted and that costs should be taxed in the amount of
$5,344.67.
BACKGROUND
This case arises from insurance claims made for damage resulting from a fire
that occurred at NNT’s premises on December 18, 2012. Nationwide filed the action
seeking a declaratory judgment that no coverage exists for NNT’s claims under
their policy of insurance. (Doc. 1). NNT asserted counterclaims for breach of
contract and bad faith refusal to pay. (Doc. 9). The Court granted summary
judgment in favor of Nationwide as to NNT’s bad faith claim (Doc. 91) and the case
proceeded to trial on Nationwide’s declaratory judgment claim and NNT’s claim for
breach of contract.
The parties’ joint pretrial document stated that NNT “will be seeking all
contractual damages which it is entitled to: $168,500 appraised value or $225,015
replaced value for the loss of the building and $150,000 for loss of contents.” (Doc.
85, p. 51). Nationwide moved to prohibit the admission of evidence relating to the
replacement value of the property because the insurance policy excluded such
coverage until the damaged property “is actually repaired or replaced” and “[u]nless
the repairs or replacement are made as soon as possible after the loss or damage.”
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(Doc. 96). That motion was granted by the Court. (Doc. 127). There was evidence at
trial that the policy limits for the building at the time of the accident were $405,000
for the building and $150,000 for the contents. (Doc. 129-2, p. 5). There was also
testimony that the policy limits of $405,000 could only be collected if the property
was rebuilt. (Doc. 129-2, p. 8). The testimony also indicated that Mr. Nall had
claimed the actual cash value, of $168,500 for the building, not replacement cost.
(Doc. 129-2, p. 8).
The jury instructions regarding damages included the following:
If you decide that Nall’s Newton proved its claim against Nationwide
for breach of contract, and that Nationwide’s defenses fail, then you
must decide how much money will reasonably compensate Nall’s
Newton for the harm caused by the breach. This compensation is called
"damages." The purpose of such damages is to put Nall’s Newton in as
good a position as it would have been if Nationwide had not broken the
contract. Nall’s Newon is claiming $168,500.00 for the building and
$150,000.00 for the contents, for a total damages award of $318,500.00.

The jurors were also advised that their “verdict must not be based on mere
speculation or conjecture but must be based upon the evidence and the just and
reasonable inferences shown thereby.” The verdict form provided a blank line on
which the jurors were to write the amount of damages awarded if they found in
favor of NNT as to its breach of contract claim. (Doc. 126). Neither party objected to
the verdict form or the above described jury charges. The jury returned a verdict in
favor of NNT as to its breach of contract claim and awarded damages in the amount
of $510,000.00. (Doc. 126).
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DISCUSSION
A. New Trial or Remittitur
A district court which finds that a jury's award of damages is excessive may
grant the defendant a new trial on this basis. Peer v. Lewis, 2008 WL 2047978, *17
(S.D. Fla. May 13, 2008) aff'd, 2009 WL 323104 (11th Cir. Feb. 10, 2009) (citing
Johansen v. Combustion Eng'g, Inc., 170 F.3d 1320, 1329 (11th Cir. 1999)).
Alternatively, “the court can order remittitur and reduce the damages.” Id. (citing
Simon v. Shearson Lehman Bros., Inc., 895 F.2d 1304, 1310 (11th Cir. 1990); Wilson
v. Taylor, 733 F.2d 1539, 1549-50 (11th Cir. 1984)). A court has discretion to issue a
remittitur if the “jury's award is unreasonable on the facts.” Johansen, 170 F.3d at
1331.1 However, the Seventh Amendment requires that a plaintiff be given the
option of a new trial in lieu of a court’s discretionary remittitur of a portion of the

“Once a defendant is found liable for the plaintiff's injury, the district court has a
great deal of discretion in deciding the level of damages to be awarded.” Ferrill v.
Parker Group, Inc., 168 F.3d 468, 476 (11th Cir. 1999) (citing Stallworth v. Shuler,
777 F.2d 1431, 1435 (11th Cir. 1985)); see also Goldstein v. Manhattan Industries,
Inc., 758 F.2d 1435, 1447–48 (11th Cir.), cert. denied, 474 U.S. 1005 (1985)
(reviewing trial court decision as to whether jury compensatory damages award was
excessive for “clear abuse of discretion”); Agro Air Associates., Inc. v. Houston
Casualty Co., 128 F.3d 1452, 1455 n. 5 (11th Cir. 1997)(reviewing denial of motion
for remittitur or new trial on ground of excessive damages under abuse of discretion
standard). However, courts should be “particularly deferential to the fact finder's
determination of compensatory damage awards for intangible, emotional harms
because the harm is so ‘subjective and evaluating it depends considerably on the
demeanor of the witnesses.’ ” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1315
(11th Cir. 2001) (quoting Ferrill v. Parker Grp., Inc., 168 F.3d 468, 476 (11th Cir.
1999)).
1

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jury's award. Id. at 1329. In contrast, “where a portion of a verdict is for an
identifiable amount that is not permitted by law, the court may simply modify the
jury's verdict to that extent and enter judgment for the correct amount.” Id. at 1330
(citation omitted). “The Seventh Amendment is not offended by this reduction
because the issue is one of law and not fact.” Id. A jury award may be
unconstitutionally excessive, for instance “the Constitution provides an upper limit
on punitive damage awards so that a person has ‘fair notice not only of the conduct
that will subject him to punishment but also of the severity of the penalty that a
State may impose.’ ” Id. at 1330-1331 (citation omitted). “[A] court has a mandatory
duty to correct an unconstitutionally excessive verdict so that it conforms to the
requirements of the due process clause.” Id. at 1330. The court should also correct a
verdict that goes beyond the damage evidence presented at trial. “In general, a
remittitur order reducing a jury's award to the outer limit of the proof is the
appropriate remedy where the jury's damage award exceeds the amount established
by the evidence.” Sands v. Kawasaki Motors Corp. U.S.A., 513 Fed. Appx. 847, 855
(11th Cir. 2013) (quoting Goldstein v. Manhattan Indus., Inc., 758 F.2d 1435, 1448
(11th Cir.1985)). Where there is only one basis for liability alleged, then the trial
court may base a remittitur order on the maximum amount proved, without
providing the opportunity for a new trial. Goldstein, 758 F.2d at 1448.

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In the instant case, the only damage claim allowed at trial was NNT’s
counterclaim for breach of contract.2 The evidence at trial established that NNT
had submitted a claim to Nationwide for the actual cash value of the building in the
amount of $168,500.00 plus $150,000.00 for the contents of the building, for a total
claim of $318,500.00. Although there was evidence that the limits of the policy
exceeded this amount, there was no evidence that NNT had claimed additional
sums or that it was entitled to additional sums under the insurance contract.
Uncontradicted evidence established that NNT had not rebuilt the property and
was not entitled under the insurance policy to replacement costs. There was no
evidence that NNT was entitled to anything more under the policy than the
$318,500.00 it had claimed. The jurors were even instructed by the court that NNT
was claiming $168,500.00 for the building and $150,000.00 for the contents, for a
total damages award of $318,500.00.
The Court can only speculate as to how the jury arrived at a damage award
in the amount of $510,000.00. Perhaps the jurors thought it appropriate to award
damages for intangible, emotional harms, due to Nationwide’s failure to pay NNT’s
claim. However, because NNT’s claim for bad faith failure to pay had been
dismissed by the court as a matter of law, there were no claims for emotional harms
before the jury. After reviewing the evidence and the claims before the jury, the
Court finds that an award of $510,000.00 unquestionably exceeds the amount

Nationwide only asserted declaratory claims that essentially sought a
determination that NNT’s breach of contract claim failed.
2

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established by the evidence. There is only one basis for liability and the maximum
amount of damages proved at trial was $318,500.00.
B. Prejudgment Interest
After reviewing the facts and circumstances of this case, the Court finds it
appropriate to award prejudgment interest to NNT. It is well established under
Alabama law that prejudgment interest may be available in the breach of contract
context where, as here, damages were reasonably certain at the time of breach. See
Goolesby v. Koch Farms, LLC, 955 So.2d 422, 429 (Ala. 2006) (“Prejudgment
interest may be available in a breach-of-contract case, ... but only if damages were
reasonably certain at the time of the breach.”) (citations omitted). Prejudgment
interest serves to return the injured party to the position it would have been in had
the contract been fully performed.3 See City of Milwaukee v. Cement Div., Nat.
Gypsum Co., 515 U.S. 189, 195 (1995) (“The essential rationale for awarding
prejudgment interest is to ensure that an injured party is fully compensated for its
loss.”); Systrends, Inc. v. Group, 8760, LLC, 959 So.2d 1052, 1075 (Ala. 2006)
(“Damages for breach of contract should return the injured party to the position he
would have been in had the contract been fully performed.”) (citations and internal

In fact, it is possible the jury’s award above the amount of NNT’s claim was an
attempt to compensate NNT for the loss of interest or use of the money for an
extended period of time. However, the jury was not instructed on interest damages
and did not hear any evidence or analysis concerning such damages. The Court is
not at liberty to speculate whether, or to what extent, the jury intended for any part
of its award to represent interest damages, See City Realty, Inc. v. Continental Cas.
Co., 623 So.2d 1039 (Ala. 1993) (finding it improper for the Court to speculate and
apportion a jury award into compensatory and punitive damages).
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quotation marks omitted). Once it was established that NNT was entitled to
damages, Alabama law provides that NNT is entitled to prejudgment interest at the
statutory rate of 6% per annum. See Maddox v. Alfa Mut. Ins. Co., 577 So. 2d 457,
458 (Ala. 1991) (“The only disputed issue at the trial was the amount of damages, if
any, to which the insured was entitled. Once that was established, Ala.Code 1975, §
8–8–8, provided for prejudgment interest on that amount.”); see also Rhoden v.
Miller, 495 So.2d 54, 58 (Ala. 1986) (“Where no written contract controls the
interest rate ..., the legal rate of pre-judgment interest is six percent per annum.”);
Edwards v. Vanzant, 492 So.2d 990, 994 (Ala. 1986) (recovery for conversion claim
should include “interest at the rate of six per cent (6%) per annum from the date of
the conversion”).
Nationwide contends that NNT cannot collect prejudgment interest because
it was not specifically plead or included in NNT’s calculation of damages in its
pretrial order. However, NNT was not required to present its claim for
prejudgment interest to the jury. Once damages were determined, the Court may
make the mathematical calculation to determine the interest to be awarded. See
Maddox, 577 So. 2d at 459 (“A party should not be required to seek a jury
instruction on prejudgment interest to be entitled to it. Once his damages are fixed,
the trial judge or the clerk should make the mathematical calculation necessary to
determine the interest to which the statute entitled him.”); Meaux Surface Prot.,
Inc. v. Fogleman, 607 F.3d 161, 172 (5th Cir. 2010) (“in diversity cases, it is not
necessary for the plaintiff's pleadings to contain a prayer or other request for pre-

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judgment interest… If state substantive law provides for the recovery of interest,
Federal Rule of Civil Procedure 54(c) requires that such be included where
appropriate.”) (citing Consol. Cigar Co. v. Tex. Commerce Bank, 749 F.2d 1169,
1174 (5th Cir.1985)). “[W]hen prejudgment interest is authorized under the
substantive law, Rule 54(c) permits a court to award it where it has not been
demanded in the pleadings. J.A. McDonald, Inc. v. Waste Sys. Int'l Moretown
Landfill, Inc., 247 F. Supp. 2d 542, 546 (D. Vt. 2002) (citing O'Hare v. Gen. Marine
Transp. Corp., 740 F.2d 160, 171 (2d Cir.1984); Newburger, Loeb & Co. v. Gross,
611 F.2d 423, 432–33 (2d Cir.1979); and FED. R. CIV. P. 54(c)).
The parties dispute the date from which prejudgment interest should be
calculated. Alabama law provides that prejudgment interest on a contract for the
performance of any act or duty accrues from the day the act should have been
performed. See ALA.CODE § 8-8-8; see also Miller and Co. v. McCown, 531 So.2d 888,
889 (Ala. 1988) (“in contract cases, where an amount is certain or can be made
certain as to damages at the time of breach, the amount may be increased by the
addition of legal interest from that time until recovery”) (citations omitted). In
other words, prejudgment interest accrues from the date of breach. Nationwide
argues that prejudgment interest is improper because the jury did not determine
when the breach occurred and evidence regarding when NNT submitted a proof of
claim or when payment was due under the contract was not even offered at trial.
However, the date NNT submitted its proof of claim and the language contained in
the policy can be determined from pleadings and papers on file in this case. See

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Alabama Farm Bureau Mut. Cas. Ins. Co. v. Williams, 530 So., 2d 1371, 1376 (Ala.
1988) (“every judgment of a court of law must either be perfect in itself or capable of
being made perfect by reference to the pleadings, or to the papers on file in the
cause, or else to other pertinent entries on the court docket; and in like manner
verdicts of juries cannot be supplemented by intendment or by reference to mere
extrinsic facts.”) (quoting Merchants' Bank & Trust Co. v. J.A. Elliot & Son, 16
Ala.App. 620, 80 So. 624 (1918)). A copy of NNT’s proof of loss, dated July 11th
2013, was filed with the court and Nationwide stated in its motion for summary
judgment that NNT’s proof of loss was submitted to Nationwide on July 16, 2013.
(Doc. 54-2; Doc. 51, p. 2, ¶ 3). The proof of loss included a copy of an appraisal on
the property. (Doc. 54-2, pp. 13-96). Under the subheading “Loss Payment,” the
policy provides that Nationwide “will give notice of our intentions within 30 days
after we receive the sworn proof of loss…” and “will pay for covered loss or damage
within 30 days after we receive the sworn proof of loss, provided you have complied
with all the terms of this policy; and (1) We have reached agreement with you on
the amount of loss; or (2) An appraisal award has been made.” (Doc. 9-1, p. 39, ¶
E(5)(c), p. 41, ¶ E(5)(h)). The jury’s verdict establishes that NNT had complied with
the policy and that Nationwide breached the policy. This Court determined that
NNT was entitled to the cash value of the building. The cash value of the building
and the amount recoverable for the contents of the building is not in dispute. There
is no evidence Nationwide ever disputed that if the loss was covered, NNT was
entitled to $168,500.00 for the cash value of the building and $150,000.00 for the

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contents of the building for a total recovery of $318,500.00. There was no evidence
that the cash value of the building was not $168,500.00. While there was some
dispute over whether the policy covered the cash value or replacement value of the
property, that issue did not require a factual determination of those amounts.
Nationwide did not dispute the amount of the loss, but merely the legal implications
of the policy language. If the policy covered the loss and did not cover replacement
value then NNT was entitled to be paid $318,500.00. The jury’s finding of coverage
together with the Court’s legal conclusions concerning the scope of the policy
establish that an amount that is certain was due to be paid. As such, the Court
finds that the policy required Nationwide to inform NNT of its intentions and to pay
for the covered loss within 30 days from the date Nationwide received the proof of
loss. Accordingly, NNT is entitled to 6% prejudgment interest from August 15, 2013
through the date of judgment.
C. Costs
“In the exercise of sound discretion, trial courts are accorded great latitude in
ascertaining taxable costs.” Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519,
1526 (11th Cir. 1985) (citing United States v. Kolesar, 313 F.2d 835 (5th Cir. 1963)).
However, in exercising its discretion to tax costs, absent explicit statutory
authorization, federal courts are limited to those costs specifically enumerated in 28
U.S.C. § 1920. Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 445 (1987).
The word “costs” is not synonymous with “expense.” Eagle Insurance Co. v.
Johnson, 982 F.Supp. 1456, 1458 (M.D. Ala. 1997). “[E]xpense includes all the

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expenditures actually made by a litigant in connection with the lawsuit.” Id.
(citations omitted). “Whereas the costs that the district court may award under
Rule 54(d)(1) are listed in 28 U.S.C.A. § 1920, a district court may not award other
costs or exceed the amounts provided in § 1920 without explicit authorization in
another statutory provision.” Id. (citations omitted). Thus, the costs will almost
always be less than the total expenses associated with the litigation. Id. (citations
omitted).
The court's power to tax costs is grounded in part in Rule 54(d)(1) of the
Federal Rules of Civil Procedure, which states: “Unless a federal statute, these
rules, or a court order provides otherwise, costs - other than attorney’s fees - should
be allowed to the prevailing party.” FED. R. CIV. P. 54(d)(1). Rule 54(d) gives rise to
a presumption that costs will be awarded, and the party opposing the award must
overcome this presumption. Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 639
(11th Cir. 1991); see also Caribbean I Owners' Ass'n, Inc. v. Great Am. Ins. Co. of
New York, 2009 WL 2150903, at *3 (S.D. Ala. July 13, 2009) (“The burden falls on
the losing party to show that specific deposition costs or a particular court reporter's
fee was not necessary for use in the case or that the deposition was not related to an
issue present in the case at the time of the deposition.”) (citations omitted); Monelus
v. Tocodrian, Inc., 609 F.Supp.2d 1328, 1333 (S.D. Fla. 2009) (“When challenging
whether costs are taxable, the losing party bears the burden of demonstrating that
a cost is not taxable[.]”).

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Section 1920 of Title 28 authorizes a judge or clerk of court to tax six items as
costs:
(1)

Fees of the clerk and marshal;

(2)

Fees for printed or electronically recorded transcripts
necessarily obtained for use in the case;

(3)

Fees and disbursements for printing and witnesses;

(4)

Fees for exemplification and the costs of making copies of any
materials where the copies are necessarily obtained for use in
the case;

(5)

Docket fees under section 1923 of this title;

(6)

Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title.

28 U.S.C. § 1920. A court may not award costs that exceed those permitted by §
1920. See Glenn v. Gen. Motors Corp., 841 F.2d 1567, 1575 (11th Cir. 1988).
NNT submitted a bill of costs totaling $5,743.27. (Doc. 130-1). Nationwide
contends that the costs should be reduced to $4,720.57 and objects to (1) witness
fees for Tim Soronen in the amount of $194.10, (2) certain court reporter and
deposition fees totaling $712.70, and (3) postage fees in the amount of $115.90.
1. Witness Fees for Tim Soronen
NNT listed Tim Soronen as a witness it intended to call at trial and
subpoenaed Mr. Soronen to attend. (Doc. 85-5, p. 3; Doc. 130-1, pp. 36-37). Mr.
Soronen is listed as an employee of the Demopolis Police Department. NNT
included costs for attendance and mileage for Mr. Soronen. Nationwide objects to
these costs because Mr. Soronen did not testify at trial. “However, witness fee
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statutes are appropriate not only for witnesses who testify, but for all witnesses
who ‘have been summoned and are ... available to testify.’ ” Barrera v. Weiss &
Woolrich S., 900 F. Supp. 2d 1328, 1333 (S.D. Fla. 2012) (quoting Hurtado v. United
States, 410 U.S. 578, 584–5, 93 S.Ct. 1157, 35 L.Ed.2d 508 (1973)); see also Spanish
Action Comm. of Chicago v. City of Chicago, 811 F.2d 1129, 1138 (7th Cir. 1987)
(holding that witness fees for witnesses who were subpoenaed to testify at trial but
were never called are recoverable because the witness fees compensated the
witnesses for their availability and readiness to testify rather than actual
testimony). Fees for witnesses who were subpoenaed but did not testify are
generally recoverable unless their testimony “was immaterial, or that the number
subpoenaed who did not testify was unduly excessive, or that the time they spent in
attendance and the fees claimed for them were manifestly unreasonable.” United
States v. Lynd, 334 F.2d 13, 16-17 (5th Cir. 1964).4 Nationwide contests the witness
fees solely on the basis of the fact that the witness was not called at trial, not on the
reasonableness of subpoenaing the witnesses and making him available to testify.
Mr. Soronen was listed as a witness for trial and is presumed necessary since there
is no evidence to the contrary. Accordingly, the Court finds that the witness fees
for Mr. Soronen are recoverable.

Decisions of the Former Fifth Circuit filed prior to October 1, 1981, constitute
binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir.1981) (en banc).
4

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2. Court Reporter and Deposition Fees
Nationwide objects to the inclusion of deposition costs for the deposition of its
own expert, and for all deposition costs listed for condensed copies, “depo drive,” and
costs for delivery by courier. Section 1920(2) authorizes the award of costs for
deposition transcripts. 28 U.S.C. § 1920(2); see United States v. Kolesar, 313 F.2d
835, 837–38 (5th Cir. 1963) (“Though 1920(2) does not specifically mention a
deposition, ... depositions are included by implication in the phrase ‘stenographic
transcript.’ ”). Whether the costs for a deposition are taxable depends on “whether
the deposition was wholly or partially ‘necessarily obtained for use in the case.’” Id.
at 621 (quoting Newman v. A.E. Staley Mfg. Co., 648 F.2d 330, 337 (5th Cir. Unit B
1981)). “[D]eposition costs are taxable even if a prevailing party's use of a
deposition is minimal or not critical to that party's ultimate success.” Ferguson v.
Bombardier Serv. Corp., 2007 WL 601921, *3 (M.D. Fla. Feb. 21, 2007). However,
“[w]here the deposition costs were merely incurred for convenience, to aid in
thorough preparation, or for purposes of investigation only, the costs are not
recoverable.” E.E.O.C. v. W & O, Inc., 213 F.3d 600, 620 (11th Cir. 2000) (quoting
Goodwall Const. Co. v. Beers Const. Co., 824 F.Supp. 1044, 1066 (N.D. Ga.1992),
aff'd, 991 F.2d 751 (Fed. Cir. 1993)).
Nationwide contends that NNT should not recover the cost of obtaining a
transcript of the deposition of their expert, A.K. Rosenhan, because his opinions
could have been presented to the Court via affidavit and that because it was only
needed by Nationwide to insure that it understood the opinions. (Doc. 134, p. 6). The

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Court disagrees. NNT states that Rosenhan’s testimony was needed to rebut the
arson allegations originally made by Nationwide. (Doc. 130-p. 2). A portion of
Rosenhan’s deposition testimony was submitted at the summary judgment stage
and his opinions were considered by the Court in ruling on Nationwide’s motion for
summary judgment. Mr. Rosenhan also testified at trial. Clearly understanding
Rosenhan’s opinions and knowing exactly what Rosenhan had testified to at his
deposition was necessary and important for NNT’s case. The mere “possibility” of
impeachment of NNT’s witness by the deposition made it reasonably necessary for
NNT's counsel to obtain a copy. Preis v. Lexington Ins. Co., 2007 WL 3120268 at *2
(S.D. Ala. Oct. 22, 2007). Accordingly, the Court finds it appropriate to allow NNT
to recover the cost of obtaining a copy of Rosenhan’s deposition testimony.
As to the costs listed for condensed copies, “depo drive,” and courier, the
Court finds such costs are not recoverable. Any portion of the cost of a deposition
that was incurred “for the convenience of the attorney” rather than being
“necessarily obtained for use in the case” is not properly taxable. Newman v. A.E.
Staley Manufacturing Co., 648 F.2d 330, 337 (5th Cir. 1981). “The concept of
necessity for use in the case connotes something more than convenience or
duplication to ensure alternative methods for presenting materials at trial.” Cherry
v. Champion International Corp., 186 F.3d 442, 449 (4th Cir.1999) (upholding trial
court's refusal to allow both videotape and stenographic transcript as costs).
Defendants generally cannot charge for both ordinary transcripts and condensed
transcripts or other duplicate forms of a transcript. Preis v. Lexington Ins. Co., 2007

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WL 3120268, at *4 (S.D. Ala. Oct. 22, 2007) (“such duplication is for the convenience
of counsel and is not taxable”). Therefore, the Court will exclude the cost of the
duplicate condensed forms of each transcript. Additionally, the “depo drive” and
courier costs will be excluded as ordinary business expenses. “Costs associated with
delivering, shipping, or handling transcripts are ordinary business expenses and are
not recoverable.” Preis, 2007 WL 3120268, at *3 (quoting Kerns v. Pro-Foam, Inc.,
2007 WL 2710372 at *3 (S.D. Ala. 2007)). Accordingly, the Court will exclude
$158.50 in costs designated as condensed, depo drive and courier costs.
Nationwide also objects to the reporter fees incurred for obtaining portions of
the trial transcripts. The cost of trial transcripts may be recovered when such
transcripts are necessarily obtained for use in the case. 28 U.S.C. § 1920(2).
Whether trial transcription costs may be taxable must be determined “on a case-bycase basis...” Crouch v. Teledyne Cont. Motors, Inc., 2013 WL 203408, *4 (S.D. Ala.
Jan. 17, 2013). “[W]hile the cost of daily trial transcripts should not be allowed as a
matter of course, a district court may award the cost of daily trial transcript where
the length and complexity of a trial make the daily transcripts necessary.” Bumpers
v. Austal U.S.A., L.L.C, 2015 WL 6870122, at *3 (S.D. Ala. Nov. 6, 2015) (citing
Kearney v. Auto–Owners Ins. Co., 2010 WL 1856060, *4 (M.D. Fla. May 10, 2010);
Maris Distrib. Co. v. Anheuser–Busch, Inc., 302 F.3d 1207, 1226 (11th Cir. 2002)).
“Factors to be considered are the complexity of the issues tried, the length of the
trial, and whether the attorneys are required to submit briefs and proposed findings
to the court during trial.” Goodwall Const. Co. v. Beers Const. Co., 824 F. Supp.

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1044, 1064 (N.D. Ga. 1992) (citation omitted). While some courts have allowed the
recovery of trial transcript costs when necessary to prepare for the crossexamination of a technical expert at that trial and when the Court reviewed
portions of the transcript in reaching its decision, case law in the Eleventh Circuit
suggests that counsel's note taking during trial should normally replace any
necessity for a trial transcript obtained during trial for cross-examination
preparation. Bumpers at *4 (citations omitted). Trial briefs were not required to be
submitted during the trial of this matter and the Court does not find the trial to
have been so complex or lengthy that trial transcripts were necessary. Accordingly,
the Court will exclude $124.20 for the costs of trial transcripts.
3. Postage
Lastly, Nationwide objects to NNT’s inclusion of postage in its copying
expense reimbursement. The Eleventh Circuit has determined that postage is nonrecoverable under 28 U.S.C. § 1920. Duckworth v. Whisenant, 97 F.3d 1393, 1399
(11th Cir. 1996). Thus, the Court will exclude $115.90 claimed as postage by NNT.

CONCLUSION
For the reasons stated above the Court hereby ORDERS as follows:
1. The motion of Nationwide Mutual Insurance Company for new trial or,
alternatively for remittitur (Doc. 128), is GRANTED to the extent that the
damage award in this case is reduced to $318,500.00.

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2. The motion of Nall’s Newton Tire to tax costs and prejudgment interest (Doc.
130), is GRANTED in part to the extent that Nall’s Newton Tire is granted
6% prejudgment interest from August 15, 2013, through the date of
judgment and costs are taxed in the amount of $5,344.67. (The motion is
DENIED in part to the extent that the prejudgment interest applies only to
the reduced damage award and $398.60 is excluded from the claimed costs.)
Nall’s Newton Tire is ORDERED to file a proposed Final Judgment
consistent with this order, on or before December 11, 2015.
3. The motion of Nationwide Mutual Insurance Company for reconsideration of
order granting Nalls Newton Tire leave to file surreply (Doc. 138), is
DENIED.
DONE and ORDERED this 7th day of December, 2015.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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