Grange Mutual Casualty Co. “GMCC” appeals the trial court’s order granting Gregory L. Kay’s motion for summary judgment on his complaint to enforce an agreement reached in settlement of a claim for bodily injury suffered by his minor daughter, Laura Beth, in a vehicular collision. In Case No. A03A1334, we affirm but remand for a recalculation of prejudgment interest. In Case No. A03A1335, Kay cross-appeals the denial of his motion for summary judgment on the issue of attorney fees. We affirm that portion of the trial court’s order and remand for the entry of judgment in favor of GMCC. The record shows that on October 15, 1998, Laura Beth Kay and her mother, Beth Brown Kay, were involved in a collision with GMCC’s insured, Fletcher Anthony Dove. Mr. and Mrs. Kay retained attorney Stephen Carter to handle the family’s claims arising out of the incident. On October 6, 2000, Carter delivered a settlement package to Sharon Jones, GMCC’s claims representative, demanding $35,000 for Mr. and Mrs. Kay and $100,000 for Laura Beth. The letter stated in part, “Of course, Mr. and Mrs. Kay have the claim for Laura Beth’s medical expenses which, according to the enclosed, appear to total $22,491.80.” On October 13, Jones replied as follows: “This will confirm our phone conversation of this date. We have settled the Bodily Injury claim on your client, Laura Beth Kay for $57,892.00.” Carter immediately acknowledged, in writing, receipt of Jones’s letter and requested that GMCC’s lawyer draft the appropriate documents to be filed in probate court to effectuate the settlement. GMCC referred the matter to the law firm of Myers & Stroberg.
On October 24, Carter wrote to the firm in response to its telephone inquiry concerning payment of the settlement, stating that the Kays desired a lump sum payment as opposed to a structured settlement and requesting that Myers & Stroberg prepare the probate court documents. Based on a second letter transmitted on the same day, however, it appears that GMCC wanted Carter to draft the documents, for which Carter planned to charge GMCC $150 per hour plus court costs. The following week, attorney W. Allan Myers called Carter and stated that his firm would draft the documents. During the conversation, Myers asked Carter how the funds should be apportioned with respect to Laura Beth’s medical expenses. Carter replied that the settlement did not include those expenses, which were the subject of a civil action Carter had filed on behalf of Mr. and Mrs. Kay. On November 8, Myers wrote Carter a letter stating, in part, as follows: Confirming our telephone conversation of last week, it is our position that the agreement to pay $57,892.00 included all claims associated with the injuries to Laura Beth Kay, including the cost of medical expenses incurred. I understand that you have a different perspective of said settlement. Based upon our conversation it was apparent that it would serve no purpose for us to proceed with the preparation of the documents for probate court approval at this time. On December 8, 2000, Greg Kay, as Laura Beth’s next friend, sued to enforce the agreement and to recover interest and litigation expenses. The complaint was amended in March of 2002 to show that the probate court had appointed Kay as Laura Beth’s guardian and had approved the settlement, and Kay was substituted as plaintiff in his capacity as guardian. Kay and GMCC filed cross-motions for summary judgment. The trial court granted Kay’s motion in part, finding that the settlement agreement was enforceable and that Kay was entitled to prejudgment interest from the date that the probate court “could” have approved the settlement, or November 3, 2000. However, the court found that a bona fide controversy existed and denied Kay’s demand for litigation expenses. GMCC appeals the grant of partial summary judgment to Kay, and Kay cross-appeals the denial of its motion with regard to litigation expenses.
