Brinkman v. Aid Insurance Co.

JOHNSON, Justice,

concurring and dissenting.

I concur in parts I, III, and IV of the majority opinion. I dissent from parts II and V.

PART II

I.R.C.P. 54(e)(3) requires that in determining the amount of attorney fees to be awarded the court “shall” consider the factors listed in the rule. In my view, for this Court to be able to determine whether a trial court has complied with this requirement and has not abused its discretion, the trial court must give a clear indication that the factors have been considered and what weight was given to each. Here, the trial court stated only that attorney fees were granted “in the full amount of the contingent arrangement of $52,006.05.” Even though evidence and argument had been presented to the court relating to some of the other factors, I am not able to determine whether the trial judge considered the other factors, and if so, what weight was ascribed to each. I would remand for a statement of the consideration given to the factors other than the contigent fee.

PART V

I.C. § 28-22-104(1) provides for interest on “[m]oney due by express contract.” The contract at issue here provided that Aid would pay damages that Brinkman was “legally entitled to recover from the owner or operator of any underinsured motor vehicle because of bodily injury....” Aid agreed to pay under this provision “only after the ‘limits of liability’ under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.... ” In my view, any award of prejudgment interest must be based on these contractual provisions.

The amount Brinkman was entitled to recover from Robinson was never litigated between them. I cannot agree with the majority opinion that prejudgment interest should be awarded on the entire judgment. The Aid contract did not speak in terms of Brinkman’s “loss,” but in terms of the amount he was “legally entitled to recover from” Robinson. That amount was not determined until the jury verdict in this case.

As to the interest awarded by the trial court, I also do not agree. Robinson’s insurer paid Brinkman the $15,000 limits of Robinson’s liability policy on September 26, 1985. Under the underinsured coverage of the Aid policy, Aid had no obligation to pay Brinkman anything until that payment was made. By September 23, 1985, Aid had paid Brinkman $10,000 — $5,000 from the medical payment coverage and $5,000 as an advancement from the underinsured coverage. The amounts received from Robinson’s insurer and from Aid more than covered Brinkman’s pretrial medical expenses of $19,522.08. Therefore, I would reverse the trial court’s award of prejudgment interest as to these medical expenses.