Terra Energy, Ltd. v. State

O’Connell, J.

(concurring). I concur, but write separately to express my concerns about the legal sup*404port for the rule the majority announces today and to invite our Supreme Court to clearly resolve this issue.

Michigan follows the so-called “American rule,” under which attorney fees are not recoverable unless specifically authorized by statute, court rule, or a common-law exception. Popma v Auto Club Ins Ass’n, 446 Mich 460, 474; 521 NW2d 831 (1994). Exceptions are to be narrowly construed. Brooks v Rose, 191 Mich App 565, 575; 478 NW2d 731 (1991). Furthermore, to recover attorney fees under a common-law exception, that exception must be generally recognized. Popma, supra at 475; Phinney v Perlmutter, 222 Mich App 513, 560; 564 NW2d 532 (1997); Brooks, supra at 575.

The only support for the exception the majority announces today is found in two cases — Star Transfer Line v General Exporting Co, 308 Mich 86; 13 NW2d 217 (1944), and GRP, Ltd v United States Aviation Underwriters, Inc, 70 Mich App 671; 247 NW2d 583 (1976), aff d 402 Mich 107 (1978). As the majority recognizes, the statement in GRP that attorney fees are recoverable in interpleader actions was merely dictum, lacking the force of an adjudication. This leaves only Star Transfer.

In that case, our Supreme Court was not presented with the issue whether interpleader actions constitute a generally recognized common-law exception to the American rule. Although the Court did in fact allow an award of attorney fees, Star Transfer, supra at 119-120, the Court did not hold that the American rule is inapplicable to interpleader actions. I do recognize, however, that Star Transfer is stare decisis with respect to this issue because the Court affirmed the trial court’s grant of attorney fees. Because I am *405required to follow Supreme Court precedent, People v Sobczak-Obetts, 238 Mich App 495, 497; 606 NW2d 658 (1999), I concur in the majority’s conclusion that attorney fees are recoverable in inteipleader actions under Star Transfer.

However, I am hesitant to conclude that inter-pleader actions are a “generally recognized” exception to the American rule on the basis of one Supreme Court opinion that did not squarely address the issue. I therefore invite our Supreme Court to amend the Michigan Court Rules to provide that attorney fees are recoverable in interpleader actions.