dissenting:
I disagree with the majority’s affirmance of the Industrial Commission’s award of attorney fees to respondent. I.C. § 72-8041 sets out the standard for an award of attorney fees at the commission level. That statute allows the commission to award attorney fees when an employer contested a claim without reasonable grounds. The commission in the present case ruled that the employer contested this claim without reasonable grounds. However, it appears that the only reason the referee made such a finding was because the employer “acted unreasonably in not accepting liability for at least a claim of partial dependency upon decedent.”
We were recently faced with a similar situation in Payne v. Foley, 102 Idaho 760, 639 P.2d 1126 (1982). In that case the trial judge had awarded attorney fees to the respondent, pursuant to I.C. § 12-1212 and I.R.C.P. 54(e)(1),3 because the judge felt that the appellant did not make a “good faith offer of settlement” or “enter into good faith negotiations toward settlement.” Payne v. Foley, supra at 761, 639 P.2d 1126. In Payne, which involved a three-car collision, liability was not seriously contested, but the percentage and amounts of damage attributable to each party was contested. We held in Payne that “it is clear that the trial court purported to penalize [appellant] for failing to submit a good faith offer of settlement or refusing to enter into good faith settlement negotiations. We are directed to no legal authority which supports such discretion .... ” 102 Idaho at 761, 639 P.2d at 1127.
The same situation occurred in this case. The claimant was asserting before the commission that she was totally dependent upon the decedent. The Commission itself found that while claimant was living with her husband Darwin Hayes he provided all of the support for the entire family including the decedent and his brother, Frank Chavez. The claimant and her husband *284Darwin Hayes separated approximately three months before decedent’s death, which would have been in the latter part of July, 1978, and thereafter, the decedent and Frank Chavez, who were working for the CETA program, contributed approximately $100 per month each toward the support of their mother, and paid $120 a month rent. Sometime between July and October, both the decedent and Frank Chavez lost their employment with the CETA program and during that period were not required to pay any rent to the City of Nampa on the apartment in which they and their mother lived. During that period of time apparently no one was supporting the family. On October 18, 1978, the decedent commenced working for the defendant, and on October 20, 1978, he was killed in the industrial accident. While employed in the CETA program, Frank Chavez testified that he claimed his mother as a dependent for tax withholding purposes. However, the decedent did not claim his mother as a dependent for tax withholding purposes in either the CETA program or when he went to work for the defendant.
Based upon the foregoing facts, the defendant denied that the claimant was totally dependent upon the decedent for her support, asserting that she was also dependent upon others, i.e., her son Frank Chavez, the City of Nampa which provided the rent, and her husband, Darwin Hayes, who, although she was separated from him had as recently as three months previous totally supported her and was legally still obligated to support her. See Smith v. McHan Hardware Co., 56 Idaho 43, 48 P.2d 1102 (1935).
The Industrial Commission, adopting the referee’s finding, assessed attorney fees against the defendant Amalgamated Sugar Company because it “acted unreasonably in not accepting liability for at least a claim of partial dependency upon decedent, pursuant to I.C. § 72-410(4) and I.C. § 72-413(4), inasmuch as claimant was, in fact, supported by her two sons while they were employed by the CETA program.” Here, as in Payne v. Foley, supra, “it is clear that the [Industrial Commission] purported to penalize [Amalgamated Sugar Co.] for failing to submit a good faith offer of settlement or refusing to enter into good faith settlement negotiations. We are directed to no legal authority which supports such discretion .... ”
I would reverse on the award of attorney fees.
. “72-804. ATTORNEY’S FEES — PUNITIVE COSTS IN CERTAIN CASES. — If the commission or any court before whom any proceedings are brought under this law determines that the employer or his surety contested a claim for compensation made by an injured employee or dependent of a deceased employee without reasonable ground, ... the employer shall pay reasonable attorney fees in addition to the compensation provided by this law.”
. “12-121. ATTORNEY’S FEES. — In any civil action, the judge may award reasonable attorney’s fees to the prevailing party or parties, provided that this section shall not alter, repeal or amend any statute which otherwise provides for the award of attorney’s fees.”
.“RULE 54(e)(1). ATTORNEY FEES. — In any civil action the court may award reasonable attorney fees to the prevailing party or parties as defined in Rule 54(d)(1)(B), when provided for by any statute or contract. Provided, attorney fees under section 12-121, Idaho Code, may be awarded by the court only when it finds, from the facts presented to it, that the case was brought, pursued or defended frivolously, unreasonably or without foundation;