(partially dissenting).
I dissent from the portion of the opinion pertaining to the appeal from the award of attorney’s fees. The court awarded ARCO $10,750.00 in attorney’s fees plus $822.40 in costs. It can also be assumed that Mrs. Sloan was required to pay substantial expenses incurred by her counsel even if the case was handled on a contingency fee basis.
In reviewing awards of attorney’s fees, we have stated:
[T]he matter of awarding attorney’s fees is committed to the discretion of the trial court. We shall interfere with the exercise of that discretion only where it has been abused. An abuse of discretion is established where it appears that the trial court’s determination as to attorney’s fees was manifestly unreasonable, (footnotes omitted)1
In Malvo v. J. C. Penney Company, Inc., 512 P.2d 575 (Alaska 1973), we held that it was manifestly unreasonable under the facts there involved to award full attorney’s fees incurred by the defense, stating:
For where in order to seek judicial remedies, a plaintiff must risk liability for the full amount of attorney’s fees the other side sees fit to incur, it takes little imagination to foresee that the size of a party’s bank account will have a major impact on his access to the courts.
*162We do not have to reach the constitutional issue since it is “manifestly unreasonable” to establish a policy under Civil Rule 82 that would enable a store owner to receive such a sizeable allowance for attorney’s fees against a party who has brought suit in good faith. Nor did the suit involve such complicated factual and legal issues or such substantial sums of money as to justify such a fee to be awarded against an unsuccessful litigant. 512 P.2d at 587.
The court here did not award full attorney’s fees to ARCO since $20,900.00 was requested. Nevertheless, the comment of Malvo that it would be manifestly unreasonable to award such a sizeable allowance against a party who has brought suit in good faith appears applicable here. In Malvo, we were concerned that access to the courts might be governed by the size of one’s bank account. We quoted Justice Cardozo’s warning against “laying too heavy a burden on the unsuccessful litigant”.2
Here Mrs. Sloan brought suit seeking to recover damages arising out of the death of her husband. Based on an extremely difficult and closely balanced issue of first impression in this jurisdiction involving the construction of the term “other” used in the Restatement of Torts (Second) sec. 422, we have concluded that her right of action against ARCO is barred. Foreknowledge that such a sizeable sum would be awarded as attorney’s fees in the event of her losing could well have constituted an impediment to access to the courts preventing litigation of an issue which she had every right to have resolved.
I do not agree with the majority that to award no fees in a situation such as this would constitute a major alteration of the provisions of Civil Rule 82 which specifies :
Should no recovery be had, attorney’s fees for the prevailing party may be fixed by the court as a part of the costs • of the action, in its discretion, in a reasonable amount.
The award of fees where no recovery is had is not mandatory since the rule uses the term “may” rather than “shall”. Further, the amount to be awarded is left to the discretion of the trial court.
In determining the “reasonable amount”, a court must give consideration to the nature of the claim and the need for making courts available to resolve disputes without the imposition of intolerable burdens. Unfortunately, other than stating broad policy considerations, I am unable to delineate specific guidelines for a trial judge to follow in awarding attorney’s fees in cases where the defendant prevails 3 The award of $10,500.00 in this case, however, appears to me to be an abuse of discretion.
While we have indicated our reluctance to interfere with the trial court’s discretion in awarding attorney’s fees,4 we overcame that reluctance in Davidsen v. Kirkland, 362 P.2d 1068, 1070 (Alaska 1961), to reduce an award from $1,700.00 to $800.00.
Here I would remand for a redetermination of the amount of the fee to be awarded, if any, to an amount not in excess of $2,500.00. This is admittedly an arbitrary figure but would constitute the maximum that I think could be awarded without unduly limiting access to the courts under the facts of this case. Specifically, I could uphold as within the trial court’s discretion the award of any sum up to $2,500.00 or the refusal to award any fee.
. Palfy v. Rice, 473 P.2d 606, 613 (Alaska 1970). See also Malvo v. J. C. Penney Company, Inc., 512 P.2d 575, 586-87 (Alaska 1973).
. Malvo v. J. G. Penney Company, Inc., supra, 512 P.2d at 587.
. The situation is somewhat akin to the often troublesome question of determining whether a trial court has been clearly mistaken in imposing a specific sentence. See, e. g., Cleary v. State, 548 P.2d 952 (Alaska 1976) (J. Burke dissenting) ; State v. Lancaster, 520 P.2d 1257 (Alaska 1976) (C. J. Boochever and J. Connor dissenting) ; State v. Wortham, 537 P.2d 1117 (Alaska 1975) (J. Connor dissenting) ; Donlun v. State, 527 P.2d 427 (Alaska 1974) (C. J. Rabinowitz dissenting).
.See, e. g., Froelieher v. Hadley, 442 P.2d 51 (Alaska 1968) ; Dale v. Greater Anchorage Area Borough, 439 P.2d 790, 793 (Alaska 1968) ; McDonough v. Lee, 420 P.2d 459, 465 (Alaska 1966).