Moore v. Omnicare, Inc.

Justice EISMANN,

specially concurring.

I concur in the majority opinion, but write to add a further comment regarding Mednat’s contention that the arbitration panel had authority to award attorney fees pursuant to AAA rules. Those rules authorize an arbitrator to award attorney fees if “the award is authorized by law.” Mednat contends that Idaho Code §§ 12-120(3) and 12-*821121 authorize the awarding of attorney fees in arbitration proceedings. Idaho Code § 12-120(3) provides that “the court” shall award attorney fees to the prevailing party “[i]n any civil action” to recover in a commercial transaction. Likewise, Idaho Code § 12-121 permits “the judge” to award attorney fees to the prevailing party “[i]n any civil action.” The arbitration panel was neither a court nor a judge, and the arbitration proceedings were not a civil action. A civil action is commenced by filing a complaint with the court. Northwest Pipeline Corp. v. State, Dept. of Employment, 129 Idaho 548, 928 P.2d 898 (1996) (attorney fees could not be awarded under § 12-121 on appeal to Supreme Court from Industrial Commission’s administrative ruling because it was not a civil action, which must be commenced by filing a complaint with the court); Lowery v. Board of County Comm’rs, 117 Idaho 1079, 793 P.2d 1251 (1990) (appeal of decision by county commissioners, commenced by filing a petition for review in the district court, is not a civil action to which § 12-121 applies). Statutes permitting or requiring a court to award attorney fees to the prevailing party in a civil action do not authorize the award of attorney fees by an arbitration panel in arbitration proceedings.