While I am in agreement with the majority's disposition of the case affirming the trial court's judgment and awarding recovery on the policy of insurance itself, I find myself in disagreement with the majority's rationale disposing of the appellant's complaint on the award of attorneys' fees.
Appellant argued that testimony by appellees' attorney with regard to their contingent fee contract was "no evidence" because such evidence will not support an award of attorneys' fees. The appellant relied on four cases, two of which are opinions of this court. In Mutual Life Insurance Companyv. Daddy$ Money Inc., 646 S.W.2d 255 (Tex.App. — Dallas 1982, writ ref'd n.r.e.), and Group Life and HealthInsurance Company v. Turner, 620 S.W.2d 670 (Tex.Civ.App. — Dallas 1981, no writ), this Court held that evidence of a contingent fee contract will not support an award of attorneys' fees under TEX.INS.CODE.ANN. art. 3.62 (Vernon Supp. 1980). This Court held that Article 3.62 authorizing the recovery of reasonable attorneys' fees contemplates the recovery of "such a fee as would be reasonable for a litigant himself to pay his own attorney for prosecuting the case, and not a speculative or contingent fee based upon the uncertainty of the litigation". Both Mutual Life and GroupLife were cases involving the recovery of reasonable attorneys' fees under Article 3.62 as a result of a suit being based upon the failure of the insurance carrier to pay a claim under the insurance policy in effect. Appellant in this case argued that the rationale applied in Mutual Life andGroup Life should apply to the recovery of attorneys' fees in this case; and that an award of attorneys' fees based upon a contingent fee agreement is no evidence of such fee, or alternatively an excessive fee. As pointed out by the majority, the Texas courts (including this Court) in construing the meaning of "reasonable attorneys' fees" under Article 3.62 have applied the definition of reasonable attorneys' fees as initially enunciated by the supreme court in Southland LifeInsurance Company v. Norton, 5 S.W.2d 767, 768 (Tex.Comm'n App. 1928, holding approved). In my opinion the same rationale should apply to the recovery of attorneys' fees in cases similar to the instant case. In Mutual Life andGroup Life the plaintiff instituted suit to recover under a policy of insurance and in addition thereto asked for attorneys' fees as provided by the statute that applied to that type of cause of action. In the instant case the appellees as plaintiffs instituted suit to recover under a fire policy and pleaded for attorneys' fees under the general article for attorneys' fees, article 2226. I see no difference in the basic nature of the suit and, as a matter of consistency and continuity, the rationale applied by this Court in MutualLife and Group Life should apply in cases similar to this. In my opinion the reasoning employed by the court inNorton is more logical and directly relates the fee to the work actually done by the attorney in the particular case. See also Argonaut Insurance Company v. A.B.C. SteelProducts Co., Inc., 582 S.W.2d 883 (Tex.Civ.App. — Texarkana 1979, writ ref'd n.r.e.); Flagg Realtors, Inc v.Harvel, 509 S.W.2d 885 (Tex.Civ.App. — Amarillo 1974, writ ref'd n.r.e.); and Wisznia v. Wilcox, 438 S.W.2d 874 (Tex.Civ.App. — Corpus Christi 1969, writ ref'd n.r.e.).
The majority concludes that the fee awarded by the trial court is not excessive. The majority states that the trial court awarded the sum of $44,893.33 in attorneys' fees which is an amount "equal to approximately one-third" of the plaintiffs' total recovery. The plaintiffs recovered the full policy amount of $134,950.00, and the amount of attorneys' fees awarded by the trial court is precisely one-third of the face amount of the policy. In my opinion the attorneys' fees are excessive based upon the Norton rationale and the trial court's judgment with respect to attorneys' fees should be reformed. The judgment could be reformed by reducing the amount of attorneys' fees awarded for the trial of the case to an amount based upon the *Page 888
reasonable hourly rate that is in evidence multiplied by the number of hours the appellees' attorneys testified they spent in preparing and trying the case. Alternatively, reformation of the attorneys' fees award could be adjusted by requiring a remittitur by appellees' fees in an amount that would cause said fees to be reasonable under the rationale ofNorton and its progeny, including consideration of the risk of litigation.
As reformed above I would otherwise agree to affirm the trial court's judgment as set forth in the majority opinion.