Brinkman v. Aid Insurance Co.

SHEPARD, Chief Justice

dissenting.

I concur in the separate opinion of Johnson, J., and write only to express my dis*355sent to that portion of the majority opinion which affirms the award of attorney fees to the plaintiff in the amount of approximately $52,000.00.

I would first note that the instant case is one involving a first-party claim of an insured against his insurance carrier. In short, plaintiff has paid a premium for insurance coverage and is entitled to recover his damages from his insurance carrier. Our legislature has authorized the award of attorney fees against a first-party carrier when it fails to pay its insured “the amount justly due.” I.C. § 41-1839. It is that statutory phrase which causes analysis problems in the instant case.

This case differs from most others considered by this Court, and differs substantially from those cases cited in the majority opinion, i.e., Decker v. Homeguard Systems, 105 Idaho 158, 666 P.2d 1169 (1983); Tanner v. Estate of Cobb, 101 Idaho 444, 614 P.2d 984 (1980); Futrell v. Martin, 100 Idaho 473, 600 P.2d 777 (1979); Craft Wall of Idaho, Inc. v. Stonebraker, 108 Idaho 704, 701 P.2d 324 (Ct.App.1985). Those cases were all decided under statutes or rules of Court not involved in the instant case. As correctly noted by the trial court, the authority for the award of attorney fees in the instant case is I.C. § 41-1839, which authorizes the award of attorney fees when a policy holder has been denied “the amount justly due” under an insurance policy.

In the instant case the trial court, in its memorandum decision regarding post-trial motions, held “the handling of the claim by the defendant [AID Insurance Company] was inexcusably slow, confused and tortured.” The record amply supports that statement of the trial court, and I would not disturb its ruling. However, that does not, in my view, resolve the issue which is presented in the instant case. The opinions of this Court have in the past affirmed the award of attorney fees to an insured who has been denied payment under a first-party insurance contract. However, none of those cases have engaged in any analysis of the particular statute, nor the circumstances under which attorney fees should be awarded to an insured, nor does today’s majority opinion.

In the instant case plaintiff demanded the policy limits of $305,000.00, which amount coincided with the total coverage under the policy. The record reveals that the final settlement offer of plaintiff Brink-man was made in March of 1987 in the amount of $225,000.00. During the first nine months of 1985 Brinkman had received $25,000.00 from insurance carriers. It was not until November of 1987 that AID offered $75,000.00 in settlement of the Brinkman claim, and tendered such amount into court. That tender was made approximately seven months after the filing of the instant action. Following trial the jury returned a verdict of approximately $156,-000.00 in favor of Brinkman.

In short, the jury verdict was approximately $81,000.00 above the amount finally offered by AID, but approximately $69,-000.00 less than Brinkman’s final offer of settlement. No case is cited by either party indicative of a clear ruling of this or any other court in such a situation. It is incumbent upon an insurer to deal fairly with a person who has paid a premium for coverage, and who has sustained damage which is included within the coverage. Such a view does not, however, provide resolution to problems confronted in a case under the instant circumstances. If an insured sustains damage, claims $100,000.00 from his carrier, and the carrier responds with an offer of $5,000.00, at what point should attorney fees be awarded? Should attorney fees be awarded if an ultimate jury verdict is only $6,000.00, $7,500.00, $10,-000.00? In my view these questions are not resolved by the majority opinion, and will continue to be vexing to both the bar and the bench of this state.

I find no assistance in previous decisions of this Court, and little in the decisions of other courts.

In State ex rel. Grassie v. Masterson, 221 Kan. 540, 561 P.2d 796 (1977), the court stated that the Kansas statute which provides for payment of attorney fees when it appears the insurer has refused without just cause or excuse to pay the full amount *356of the loss, will only be applied when the carrier has been “unreasonable in its position ” that will be determined upon the facts and circumstances of each particular case. See also Helmich v. Northwestern Mutual Ins. Co., 376 F.2d 420 (7th Cir.1967); Parker v. Continental Casualty Co., 191 Kan. 674, 383 P.2d 937 (1963); see also Belch v. Gulf Life Ins. Co., 219 Ga. 823, 136 S.E.2d 351 (1964). I find the language of those cases not providing a solution to the problem posed in the instant case. Here there was apparently no dispute as to coverage, and a substantial amount was tendered albeit in a very tardy fashion. In the instant case the final demand on behalf of the insured was slightly closer to the ultimate jury award than was the final tender by the insurance carrier. Should the rule be drawn as to reward the claimant in such circumstance? It is my belief that this Court should provide some guidelines for use by the trial court in such circumstances, rather than merely affirm or reverse an award of attorney fees and leave the bench and bar to speculate as to what the law may be in the state of Idaho.