ON PETITION TO REHEAR
Robert H. Polk, Executor, etc. has filed a petition to rehear in this cause wherein it is alleged that the petitioner is much aggrieved by so much of the holding of this Court as adjudged that petitioner was not entitled to recover the statutory penalty of twenty-five per cent (25%) as decreed by the Court below.
An examination of this petition reveals that it is based largely on the assertion that this Court overlooked the fact that the decree of the Chancellor declared a lien on the recovery for complainant attorney in the amount of $1,103.17 to be deducted from the balance in excess of that amount owing to Associates Capital.
We feel compelled to agree with the statement of counsel for the respondent life insurance company that:
“When the allowance of a penalty is otherwise justified, the expense of an attorney’s fee is considered in determining the extent of the penalty, but the incurring of the expense of an attorney is not a factor to be considered in determining whether the refusal to pay was in ‘bad faith’ or was ‘in good faith’ based, on reasonable grounds.”
We are still of opinion that there was legitimate ground for disagreement about the coverage of the insurance policy involved, in this litigation and that the record does not support the finding of bad faith on the part of the insurance company so as to justify the recovery of the statutory penalty.
*25It results that the petition to rehear is respectfully denied except that the opinion and, decree originally filed in the cause is amended so as to provide that the cause is remanded to the Trial Court for such other or further proceedings: as may be necessary or proper with particular reference to the fixing of attorneys fees for petitioner’s attorney.