dissenting:
¶ 1 I must respectfully dissent from the majority opinion insofar as it holds that the Truelocks are precluded from recovering attorney’s fees in addition to their $25,000 property damage award. I believe the Court’s decision is erroneous and I fear it will cause significant and unwarranted hardships to deserving parties who have been injured by governmental negligence through no fault of their own.
¶ 2 The issue is not so simple and uncomplicated as the Court dismissively finds it to be. Huff v. State, 1988 OK 1998, 764 P.2d 183, is not controlling here and, in my opinion, the Court’s reliance on it as exclusively determinative of the question is misplaced. Contrary to the majority’s view, among other factors there are substantial “distinguishing characteristics” between attorney fees awarded to a prevailing party under 12 O.S. § 940 in property damage cases, and prejudgment interest under 12 O.S. § 727.
¶ 3 Prejudgment interest is an element of damages which must be added to other damages in calculating the total liability of a losing party, whereas in this context attorney’s fees are not damages but costs, and a different question is presented as to whether an award of costs and attorney’s fees should be part of the recovery subject to the statutory cap. Huff, at 188. See also Fleet v. Sanguine, 854 P.2d 892, 899 (Okl.1993); 2A. Sedgwick & G. Van Nest, Sedgwick on Damages 157-158 (7th ed 1880); see generally Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978); Lienhard v. Minnesota, 431 N.W.2d 861 (Minn.1988); Austin v. Tennessee, 831 S.W.2d 789 (Tenn.Ct.App.1991).
¶ 4 Most importantly, the Court overlooks its own cases on point which must be considered in this decision of whether attorney fees should be part of the “total recovery” subject to the statutory cap. As discussed below, these decisions require a ruling in favor of the Truelocks as a matter of constitutional law.
¶ 5 This Court has addressed the issue of the award of “reasonable” attorney’s fees to a prevailing party pursuant to § 940 in an action for damage to property brought under the Governmental Tort Claims Act. In Rout v. Crescent Public Works Authority, 878 P.2d *11931045 (Okl.1994), a case of first impression, the Authority, a governmental subdivision, prevailed on its motion for summary judgment and was awarded costs and attorney’s fees against the plaintiff, a private individual in the amount of $12,316.64. This Court affirmed the judgment against the individual plaintiff. Answering the challenges the plaintiff urged against having to pay the Authority’s attorney’s fees under 12 § 940, this Court found that there was no inconsistency between 12 § 940, which expressly provides for attorney’s fees, and the Governmental Tort Claims Act, which does not speak to an award for either party. The Court observed that while the language of the GTCA is silent regarding costs and attorney’s fees, the Act provides that liability is further governed by § 164, which states:
“The laws and statutes of the State of Oklahoma and the Rules of Civil Procedure, as promulgated and adopted by the Supreme Court of Oklahoma insofar as applicable and to the extent that such rules are not inconsistent with the provisions of this act, shall apply to and govern all actions brought under the provisions of this act.”
¶ 6 In Rout, the Court did not directly address the question of whether a private party could collect attorney’s fees from a governmental subdivision, however, we expressly noted that there is “nothing in the Act which suggests that had Rout prevailed. ... [he] would not have been able to collect attorney’s fees and costs from [the Authority].” At 1050. The Court also noted that it need not decide “whether an award of attorneys fees and costs under 12 O.S.1991, § 940 ... constitutes a recovery subject to the monetary limits of the Governmental Tort Claims Act”.
¶ 7 Justice Wilson dissented in Rout based on her observation that by granting attorney’s fees to a governmental body for its successful defense of an action brought by an individual for damages, the Corn t was creating a problem of unequal treatment for litigants. Justice Wilson predicted (correctly) that the Rout decision was certain to create disparate treatment of litigants if seriously injured private plaintiffs who prevailed in their actions would not be entitled to an award of attorneys fees because those fees were subject to the limits of the Tort Claims Act, but a governmental entity which prevailed could recover attorney’s fees against that individual without limitation. The case which she predicted would appear, is before us today.
¶ 8 Two other decisions, Allison v. City of El Reno, 894 P.2d 1133 (Okl.App.1994) and Professional Credit Collections v. Smith, 933 P.2d 307 (Okl.1997) must be considered in determining whether the Truelocks should be precluded from receiving the attorney’s fees awarded to them by the trial court by reason of the statutory limitation of the Act.
¶ 9 The question of a private individual’s entitlement to a “reasonable” attorney’s fee under the Act (absent considerations of a statutory cap) was answered in Allison v. City of El Reno, supra. Following the reasoning of the Supreme Court in Rout, the Court of Appeals, Division No. 4, concluded that private party plaintiffs who succeed against a governmental entity are entitled to § 940 attorneys’ fees under § 164 of the GTCA. The Court of Appeals noted that there were no inconsistencies within the various statutory provisions and found that as the prevailing parties, plaintiffs were entitled to fees under 12 O.S.1991 § 940A as a result of the negligent injury to their property.
¶ 10 The Court stated:
“Our analysis inevitably leads us to the conclusion that those statutory remedies which are not specifically prohibited by the GTCA remain available, and therefore the City can be assessed with those statutory items of recovery, such as attorney’s fees, that are not traditionally considered damages, if the prevailing party is otherwise so entitled.”
¶ 11 In Professional Credit Collections v. Smith, supra, a defendant who was successful in vacating a default judgment entered against her was held by this Court to be the prevailing party and entitled to attorney’s fees. Reversing the trial court’s denial of her fee request, this Court held that she was additionally entitled to attorney’s fees because a ruling to the contrary would uncon*1194stitutionally deny her equal protection of the laws. The Court pointed out that if the plaintiff had prevailed and defeated her vacation quest, it would have been entitled to an attorney’s fee, and the Court stated:
¶ 12 “A statute violates equal access to the courts when it treats — for attorney’s fee purposes — the victorious plaintiff differently from a successful defendant.... Because equal protection demands like treatment, [defendant] also is entitled to the same benefit. In her counsel-fee quest [defendant] must be viewed as standing on a footing equal with [plaintiff].”
See also Thayer v. Phillips Petroleum Company, 613 P.2d 1041, 1045 (1980); Chicago, R. I. & P. Ry. Co. v. Mashore, 21 Okl. 275, 96 P. 630, 633 (1908).
In the instant case, the majority’s resolution creates the constitutionally intolerable disparity between the treatment afforded these litigants which was predicted by Justice Wilson’s dissent in Rout. Although the Truelocks are the prevailing parties, they are not entitled to an award of their attorney’s fees because it would exceed the statutory cap, whereas, if the City of Del City had prevailed in its defense of the Truelock’s property damage claim, it could have collected unlimited attorney’s fees from the Truelocks. This unequal treatment is obviously violative the rights of litigants to equal protection of the law and denies the Truelocks equal access to the courts assured by Professional Credit Collections v. Smith, supra, and I dissent.
¶ 13 I am authorized to state that Chief Justice Kauger joins in part and Justice Wilson joins in the views expressed herein.