dissenting.
The circumstances of this case are not difficult to comprehend. In Turner v. Willis, 116 Idaho 682, 778 P.2d 804 (1989) (Turner I), on principles of stare decisis the action which we took with regard to the district court’s assessment and award of attorney fees was that the district court on remand would reconsider the award of attorney fees without extending any consideration to the settlement negotiations of the parties. 116 Idaho at 686, 778 P.2d at 808.
There cannot be any serious questioning as to whether we did or did not put some teeth into the legislature’s I.C. § 41-1840, by our express holding “that the district court did not err in giving due consideration to defendants’ refusal to make any advances on plaintiff’s sum-certain medical bills, especially given defendants’ belated admission of liability.” 116 Idaho at 685, 778 P.2d at 807. Our order of remand contained the specific direction to the district court “to reconsider the award of attorney fees without extending any consideration to the settlement negotiations of the parties.” 116 Idaho at 686, 778 P.2d at 808 (emphasis in original).
Chief Justice Bakes filed a concurring opinion which in actuality was an opinion concurring in part and dissenting in part. His purpose was to state his disagreement with the Court’s holding that the district court in further proceedings on remand could consider the defendants’ conduct in not advancing any funds to Turner, notwithstanding that the statute, I.C. § 41-1840, allows a defendant to do so without thereby being said to have admitted liability. In connection therewith the district court could, of course, choose to not ignore that the defendants, when the case came up for trial, admitted 100 percent liability. All of which is set out in the Turner I opinion. Strange, indeed, although the defendants accepted the tenor of our opinion, as signified by not petitioning for a rehearing as to the entire opinion or any part thereof, Chief Justice Bakes did not, and to this day does not.
By luck of the draw, this sequel to Turner I fell to Chief Justice Bakes for the writing of the Court’s opinion, and, true to his “dissent” in Turner I, he indulges in the assumption that there is no Turner I, there is no such doctrine as law of the case, and moreover he takes two justices into his company. In Turner I, the assault which Justice Bakes made on the Court’s opinion was solely a collection of meandering concerns which occurred to him, but to no other member of the Court, as is readily witnessed by one paragraph:
However, I cannot concur in that part of the majority opinion which suggests that ‘defendants’ refusal to advance even one farthing toward plaintiff’s medical bills is relevant in determining whether or not the case was defended frivolously, unreasonably or without foundation under Rule 54(e)(1). The fact that I.C. § 41-1840 permits a defendant to advance payments without admitting liability or without waiving a defense does not authorize a conclusion that such a defendant can or should be penalized by the award of attorney fees for not advancing a portion of the plaintiff’s damages. This suggestion will only further complicate the award of attorney fees under I.C. § 12-121 and I.R.C.P. 54(e)(1), a procedure which now often requires a second trial after the first one. Determining when an item of damages is sufficiently and adequately established as to require a defendant to tender that part of the damages under pain of having to pay the other party’s attorney fees allocable to proving that particular item is not required by I.C. § 41-1840, or any other legal authority, to my knowledge. Certainly, the majority opinion cites no authority for that proposition. The suggestion in the Court’s opinion is erroneous and will greatly complicate an already difficult problem.
Turner I, 116 Idaho at 686-87, 778 P.2d at 808-09. There was no concurrence.
A fact of life which has to be lived with is that the Court in Turner I, speaking through a majority, held as it did, and remanded to the district court to reconsider the attorney fee award per specific di*1027rections. Judge Newhouse had to live with it. Chief Justice Bakes, and his adherers likewise have to live with it, other than that they as a majority have it within their power to overrule a law of the case announcement. They may choose to do so, but such action will not be in the best interests of orderly judicial administration. Moreover, other than for the views of Chief Justice Bakes, as expressed today and earlier in August of 1989, there has been not one word heard from anywhere which backs the proposition that defendants, and their insurers, have any valid reason for not paying medical bills, especially when they know that their delay is causing great distress to an injured and impoverished plaintiff, and also know that delaying trial and thus keeping an injured plaintiff at bay will often reduce a plaintiffs resistance at a settlement figure which is unconscionably low.