In a December 2013 post, I blogged about the Kentucky Court of Appeals’ opinion in Bryan v. Correctcare-Integrated Health, 2012-CA-1500, which was not final at that time. In March 2014 the decision became final, and it was published in April at 420 S.W.3d 526 (Ky. App. 2013).
The decision discussed a seldom-cited Kentucky statute, KRS 453.050, that provides for an “allowance to witnesses” to be included in the prevailing party’s bill of costs. It further provides that the trial court “may by order confine [the recoverable allowance] to not more than two (2) witnesses on any one (1) point.” In Bryan, the trial court had granted costs of $100 per day for a named individual defendant and for two expert witnesses called at trial by the prevailing party. The Court of Appeals reversed, holding that “the amount and nature of the expenses incurred by each witness were not properly presented to and considered by the trial court.” The Court of Appeals stated that the amount that should be awarded is a “subsistence allowance which would ordinarily include a sum for the witnesses’ necessary meals, lodging, and travel.” The Court cited for support the “venerable old case” of Nix v. Caldwell, 81 Ky. 293, 5 Ky. L. Rptr. 324 (1883), which used the phrase “per diem” to describe the allowance that should be provided for trial witnesses.
The Court of Appeals said it would not comment as to the necessity to increase or decrease the $100 per day award the trial court made, but said the amount should be recalculated after consideration of the actual expenses incurred by the witnesses. The Court also said it was within the trial court’s discretion to award the allowance to three witnesses (as opposed to only two) on a particular point. It did not draw a distinction based on the fact that one of the persons whose allowances were approved was a named defendant.
Of course, actual expenses incurred by litigants for attendance of trial witnesses can be considerable, particularly where air travel is necessitated. It remains to be seen what level of reimbursement for actual travel and lodging costs will be awarded by Kentucky trial courts and upheld by our appellate courts. Interestingly, the Court in Bryan did not discuss or distinguish a 2009 unpublished decision by a panel comprised of two of the three Judges on the Bryan panel in which the Court of Appeals reversed the trial court’s award to the prevailing party of an expert witness’s actual travel expenses totalling $3,944 as exceeding what was a reasonable allowance under KRS 453.050. See Test v. Expressbill, LLC, 2009 WL 3321009 (Ky. App. 2009). However, if they had referenced the unpublished case, the decisions are easily harmonized. The phrases “allowance” and “per diem” do not normally refer to actual costs incurred, but rather to something like an amount necessary for “subsistence,” to borrow the word used in Bryan. The word subsistence in this context normally means the minimum necessary to support life. Thus, the actual cost of air travel, meals, and lodging might easily exceed the subsistence amount the trial court should consider reimbursing.
Certain other Kentucky statutes and regulations may provide some guidance to trial courts and litigants on this issue. For instance, KRS 421.015 provides that a “witness who resides in a county other than that to which he is subpoenaed shall be allowed the same amount allowed state employees under KRS 44.060.” The latter statute and its accompanying regulations (200 KAR 2:006) provide for a per diem allowance up to a maximum of $36 for meals, reimbursement for “economical” lodging, as well as mileage reimbursement for trips by automobile at the state-approved rate. The associated regulation, 200 KAR 2:006, defines “subsistence” (the same word used by the Court in Bryan) as “amounts expended … for meals, such as tax and tips, … except for any meals which may be included in charges for lodging or in registration fees paid by or on behalf of a state officer or employee.”
In short, the Bryan decision and the underlying statute on witness allowances as a recoverable cost raise the price of poker for litigants going to trial. The case provides considerable discretion to trial courts to decide how much of the actual expenses incurred by the prevailing party and that party’s trial witnesses will be taxed as recoverable costs. Bear in mind that any objections to a bill of costs must be served on the prevailing party within five days of service of the bill of costs under CR 54.04(2).
Note: The foregoing post includes commentary reprinted from the forthcoming 2015 supplement to 7 Phillips & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2014 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-litigation-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.Back to news