dissenting:
As the Majority points out, the “reasonableness of the attorney fees was the sole issue [that] this court questioned.” In our Order of Remand, we held that the “fees related to the collection action” were “clearly excessive” and that they “must be vacated.” This is the law of the case; or, rather, it was the law of the case until Judge Recanzone determined that our calling this a collection action was “ludicrous”1 and “affirmed in all respects”2 the fee award that this court adjudged to be so clearly excessive that it had to be vacated.
In affirming his own judgment Judge Recanzone did not make any “[findings of fact” in this jury case, as suggested by the Majority; rather, he simply “respectfully disagree[d] with the reasoning of the Order of Remand” and overruled as a matter of law our Order vacating the fee award. Judge Recanzone has “respectfully” corrected this court’s characterization of the case as a collection action and has ruled, contrary to our Order of Remand, that the jury award included as “elements of damage” not only fees related to collection on the $25,000.00 bond but also “in defending ... the counterclaim of the defendants.” This ruling is incompatible with our Order of Remand, wherein we addressed only “fees related to the collection action. ” (Emphasis added.)
Judge Recanzone’s Decision decided an issue that has not as yet been considered by this court, namely, whether United Pacific is entitled, solely based on the wording of the indemnity contract, to recover attorney’s fees incurred by United Pacific for the defense of the Harveys’ tort claim. I respectfully submit that until this court rules on that critical question, the Harveys cannot justly be compelled to pay the attorney’s fee award which this court has previously vacated. If, as I believe to be the case,3 the *627agreement of the parties does not permit United Pacific to recover attorney’s fees when it is sued for a tort, then this case should be remanded to a district judge who is willing to follow our Order of Remand and to “evaluate reasonable attorney’s fees” as “related to the collection action.” If, on the other hand, this court were to hold that United Pacific is entitled to recover tort defense fees, even when it does not prevail (see supra note 3), then, the jury award may very well not be, as we said in our Order of Remand, “clearly excessive.” It should be this court, however, and not the district court, that makes these rulings; and, for so long as we permit the district court’s Decision to stand as the law of the case, I cannot quarrel with Judge Recanzone’s use of the term “ludicrous” in describing our actions in this case.
The Majority’s uncritical acceptance of Judge Recanzone’s legal ruling that the indemnity contract entitled United Pacific to recover tort defense fees and costs casts this case in an entirely new light. Our Order of Remand is solely concerned with clearly excessive fees related to United Pacific’s collection on sums that it claims to be due under a $25,000.00 bond. Now an entirely different question has emerged, namely, whether the fee award is excessive if it were seen as encompassing both collection fees and defense fees. Before the Harveys are required to pay hundreds of thousands of dollars in tort defense fees,4 they are entitled to a carefully-considered decision by this court as to the Harveys’ obligation under the indemnity contract to pay United Pacific’s tort defense fees.
I dissent not because of this court’s decision but because of its indecision. I do not understand how the fee award can be affirmed until this court addresses the scope-of-allowable-fees issue that was decided by Judge Recanzone when he “affirmed” his own district court judgment “in all respects.”
United Pacific Ins. Co. v. Harvey, Case No. CI 8128, Third Jud. Dist. Ct., Lyon County, at 3 (decision filed September 12, 1991).
Id. at 9.
The jury was instructed (Instruction No. 18) that if its verdict was in favor of United Pacific, it could then award “[a]ll costs, expenses and attorneys’ fees it has incurred in this case.” In his affirmance of the district court judgment, however, Judge Recanzone, ruled that the award did not depend on “an agreement between the parties for an award of attorney’s fees to the prevailing party.” Thus, it would appear from the judge’s written Decision that United Pacific was entitled to recover any tort defense fees and costs that it incurred even if it lost the lawsuit. That United Pacific should be entitled to recover attorney’s fees for defending the Harveys’ tort claims even if the Harveys won the lawsuit seems to me to be a rather extravagant position for the district court to take. I note that the indemnity contract does not provide anything to the following effect: “If the Contractor should find it necessary to sue the Surety in tort or for any other cause, the Surety shall be *627entitled to recover all attorney’s fees or costs expended in the defense of such claims, irrespective of who prevails.” The indemnity agreement does provide for payment of fees and costs “deemed necessary” by the Surety when any “claim, demand, suit or judgment upon said bond” is asserted. This does not say to me that the Harveys must pay defense costs if they decide to sue United Pacific.
Three years ago, our staff advised us that the judgment was then “in excess of $225,000.00 and climbing.”