Motorists Mutual Insurance v. Brandenburg

Douglas, J.

The issue in this case is whether the trial court abused its discretion in awarding attorney fees to appellants. For the reasons that follow, we find that the trial court did not abuse its discretion and, accordingly, we reverse the judgment of the court of appeals.

In Vance v. Roedersheimer (1992), 64 Ohio St.3d 552, 556, 597 N.E.2d 153, 156, this court reaffirmed that in Ohio, an award of attorney fees must be predicated on statutory authorization or upon a finding of conduct which amounts to bad faith. This court has further determined that an insured may be entitled to attorney fees if an insurer wrongfully refuses to defend an insured in a negli*159gence action. Motorists Mut. Ins. Co. v. Trainor (1973), 33 Ohio St.2d 41, 62 O.O.2d 402, 294 N.E.2d 874.

Trainor involved a declaratory judgment action brought by the insurer against its insured. We stated that the action was commenced by the insurer “to serve the sole interest of the insurer and arises out of Motorists’ basic unwillingness to defend a suit in which it had a clear legal duty to defend, which even Motorists ultimately acknowledged. The rationale behind allowing attorney fees to date in defending the negligence action is that the insured must be put in a position as good as that which he would have occupied if the insurer had performed its duty. The fact that the insurer brings a declaratory judgment action after it has failed in its duty to defend should not require the insured to incur expenses which he cannot recover.” Id. at 47, 62 O.O.2d at 405, 294 N.E.2d at 878.

The court of appeals, in the case we are now considering, relied on case law from this court and other courts. The court determined that attorney fees could be granted to an insured only in instances where the insurer’s conduct was “unreasonably burdensome or vexatious” or where there has been a wrongful refusal by the insurer to defend the insured. The court concluded that Motorists presented a legitimate issue in its declaratory judgment action regarding coverage and, therefore, the trial court erred in awarding attorney fees to appellants. The court of appeals declined, however, to decide whether the Declaratory Judgment Act itself, and specifically R.C. 2721.09, is a proper vehicle to grant an insured attorney fees.

Appellants assert that regardless of the specific duties imposed upon an insurer and irrespective of the insurer’s conduct, a trial court, as incidental to a declaration of an insurer’s obligations to its insured, has the discretion under R.C. 2721.09 to permit a recovery of attorney fees by the insured. We agree with appellants.

R.C. 2721.09 provides in part that:

“Whenever necessary or proper, further relief based on a declaratory judgment or decree previously granted may be given. The application therefor shall be by petition to a court having jurisdiction to grant the relief.” (Emphasis added.)

It is beyond dispute that questions concerning insurance policies are within the purview of R.C. Chapter 2721. See, e.g., Preferred Risk Ins. Co. v. Gill (1987), 30 Ohio St.3d 108, 30 OBR 424, 507 N.E.2d 1118. R.C. 2721.09 plainly permits a trial court, following a binding judicial interpretation of an insurance policy based upon a declaratory judgment action, to provide relief which the court deems “necessary or proper.”

By its clear terms, the intent of R.C. 2721.09, affording further relief in declaratory judgment actions, is to provide a trial court with the authority to *160enforce its declaration of right. See, also, R.C. 2721.11 (In any proceeding under the Declaratory Judgment Act a trial court “may make such award of costs as is equitable and just.”). Nowhere in R.C. Chapter 2721 is there any provision which narrows the broad authority conferred by R.C. 2721.09. Moreover, R.C. 2721.09 does not place any legal significance on the insurer’s conduct nor is the operation of the section conditioned on which party actually prevails in the underlying action. Rather, the only limitation placed on the trial court is that the relief must be “necessary or proper.” Hence, this court should not create a blanket limitation precluding an award of attorney fees based upon conduct of a party and/or who wins or who loses. This is even more apparent given the requirement under R.C. '2721.13 that “[sjections 2721.01 to 2721.15, inclusive, of the Revised Code are remedial, and shall be liberally construed and administered.”

Accordingly, we hold that a trial court has the authority under R.C. 2721.09 to assess attorney fees based on a declaratory judgment issued by the court. The trial court’s determination to grant or deny a request for fees will not be disturbed, absent an abuse of discretion.

In the case at bar, we believe that the trial court did not abuse its discretion in awarding attorney fees to appellants. The trial court determined, and Motorists had apparently agreed, that if appellants ultimately prevailed on the issue of coverage they would be entitled to attorney fees. It is of no consequence that Motorists presented a legitimate issue regarding coverage in the underlying declaratory judgment action. Appellants’ position was equally strong as that of Motorists.

Further, it is evident that the trial court recognized the anomalous result that may arise in these types of cases. Here, appellants were covered by an insurance policy they had purchased. They sought to have their own insurance company compensate them (pursuant to uninsured motorists coverage) for losses they incurred. Subsequent to the court of appeals’ previous decision mandating coverage, the parties (appellee and appellants) apparently settled appellants’ claims for $2,000. To effect this recovery, appellants were forced to retain counsel and expend át least $10,339.15. Under these circumstances, appellants would have been better off if they had been without insurance.

For the foregoing reasons, we reverse the judgment of the court of appeals and reinstate the judgment of the trial court. Further, we remand the matter to the trial court for further proceedings it deems appropriate.

Judgment reversed and cause remanded.

*161Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Moyer, C.J., Wright and Cook, JJ., dissent.