*1 346 remand, magistrate shall consider To test that we must read the
On paragraphs the several re- text of which follow appropriate fees child, Grant, heading. As to the eldest magis- proceedings lated to the before support beyond age being 18 is whose appeal judge. and to the district trate on questioned, the text reads as follows 54(d)(1)(B)(1987). so, doing I.R.C.P. skeletonized fashion: magistrate should take into account that (1) alimony Mary, pursuant agrees to Wife $333.33 the award of Husband per support of Grant. agreement, appealed to this month for was not magistrate Court and remains intact. The (2) (1) Payments are to commence under should also consider that we have affirmed September 1981 and continue and Mary’s agreement right to enforce (Note— including August 1985. action, her claim for through this but that 1984.) May 18 in Grant became majority support child after his Grant 1985, (3) pay- Commencing September magistrate remanded to the has been for the children “who are then ment ambiguity agree- in the resolution of the per yet minors” will be each $500 ment. month. no appeal, conclude that there was On we Thus, payments were a level therefore, no prevailing party, and award August per month both before and after Cf, costs. International attorney fees or (subject adjustment for the 1985 Industries, v. Daum Inc. Engineering Co. formula) things indi- Price Index and two parties would come of cate knew Grant HUNTLEY, JJ., and BAKES and age payments for 13 more and still receive J., Tern., TOWLES, Pro concur. months. “Grant,” 2 not Paragraph 1. referred to SHEPARD, C.J., sat but did child,” receiving payment “minor as participate. 1985; certain, August to the date Justice, HUNTLEY, concurring specially. adjustment to Paragraph 2. 3 made the $1,000 per opinion keep figure at month fully majority
I in the concur “yet children are specific for concur- reference to who my would state reasons ring in Part minors.” V. as personally agreement read the un- I TOWLES, J., Tem., Pro concurs. support for the
ambiguously providing for through August but since son Grant as judges
the two trial as well members disagreed as to the mean-
this Court have agreement, apparently it is am-
ing of the biguous. 766 P.2d following line of My reading follows the Jr., BRINKMAN, Robert L. reasoning: Plaintiff-Respondent-Cross-Appellant, agreement in the stat- early recitals v. custody for the parties providing are ed the COMPANY, AID INSURANCE Para- their minor children. support Defendant-Appellant-Cross-Respondent. OF MI- graph is entitled “SUPPORT VI No. 17035. At the December CHILDREN.” NOR was executed agreement date the of Idaho. Supreme Court minors, being ages children were then Dec. 1988. for hus- respectively. Counsel uses of the argues foregoing band support no will be “minor” indicate
word
paid beyond majority.
Nelson, Rosholt, Robertson, Brinkman, According Tolman & Aid refused to Tucker, Falls, Nfendant-appel- any portion Twin advance of his underinsured lant-cross-respondent. Terry coverage fully settling Thomas Uhl- motorist without his ing argued. receiving claim. After several demand let- threatening ters the initiation of bad faith Lezamiz, Hepworth, Nungester, Felton & *3 $5,000 litigation, Aid advanced under the Falls, plaintiff-respondent-cross- Twin for coverage Septem- underinsured motorist on appellant. argued. Hohnhorst John C. year ber one after the accident. September, In mid to late Brink- HUNTLEY, Justice. attorney man’s sent a “settlement bro- appeal This the determination of involves Andre, Ralph adjustor chure” to an at may when accident victim’s insurer n Aid’s Denver office. The brochure con- required pay to attorney claimant’s fees tained extensive discussion of Brinkman’s particularly, under I.C. 41-1839 more § him, biograph- injuries and Aid’s procedural required what actions are information, bills, physician re- ical medical statute, invoke that and how fees ports, etc. The brochure demanded that appeal are to be calculated. The further $305,000 pay maximum of the —the applicability involves issues of the $300,000, coverage plus underinsured collateral source doctrine and when and to (Aid $5,000 coverage. appar- for medical prejudgment may ap- extent interest what $5,000 ently pay pay- did from its medical propriately be awarded. 2, 1985.) coverage January ment on receiving denies the settlement brochure APPEAL BACKGROUND OF THE February day prior to 1986—one before Aid, against Brinkman filed suit but the Brinkman, Aid In- Robert an insured of found, fact, trial court as a matter of severely injured in Company, surance was the brochure was mailed and received an automobile accident caused an under- October, September/early late 1985. The Flagstaff, motorist Arizona. insured settlement brochure advised that “this of- policy pay Aid refused to Brinkman his accepted fer of settlement within suit, and Brinkman filed limit of (15) days your receipt of these fifteen $156,018.16. obtaining materials, regarded as which injuries in a head- Brinkman’s occurred 41-1839(1).” ‘proof of loss’ under I.C. § September on collision on when “proof The trial court found that line and hit motorist crossed the center provisions loss” of I.C. 41-1839 had been § multiple him. Brinkman sustained serious met, stating: $19,830.08 orthopedic injuries incurred argues simply asking for expenses. in medical Brinkman was also Defendant support the claim required to withdraw from his fall se- limits does not University, adequate “proof nor does it constitute mester at Northern Arizona except This be true studying high where he was to be a school loss.” would Company knew of at least mathematics teacher and athletic trainer. Aid Insurance expended in injuries already actual Brinkman’s continue to cause re- medicals, re- pain, inability partic- that Mr. Brinkman current low back knew future, surgery in the quired additional ipate in strenuous work or athletic activi- had missed a permanent limp. of his knew that Mr. Brinkman ties and a Some of his degenerative likely year’s worth of school because injuries are and will Mr. Brinkman expenses injuries, such as and knew that require future medical sports hip very active enthusiast and probability of the need for a total was a Insurance, knowing resulting premature de- athletic trainer. Aid replacement due to having a settlement all these factors and generative arthritis. Aid was notified of $300,000, adequately request still in the for the accident while placed on notice of the nature and extent hospital began investigating shortly by its insured. being of the claim made thereafter. I. Aid Insur- Notwithstanding the fact that disputes the amount Company ance court first issue is whether claim, enough had clear it is attorney fees Brink- properly awarded presented to in- been defendant I.C. 41-1839. man under § voke I.C. 41-1839. § essence, 41-1839(1) provides I.C. § in- fixing prejudgment fails any insurer which that: terest, looked justly due under terms of amount 28-22-104(1) provides prejudg- days proof thirty within of loss “money by express ment interest on due language fees. liable agreed Brink- contract.” The court with (1) the questions: this statute raises two man that case a contract constituted and; (2) the meaning “proof of loss” aspects,” action found “obvious tort justly due.” meaning of “amount *4 ignored, which not be and further could inequitable found to award that it would (1) “Proof of Loss” Meaning The of prejudgment interest for amount the entire nor Aid’s insur- Neither I.C. 41-1839 § due, many damages because of the were “proof of loss.” There- ance define “liq- not readily ascertainable and not were fore, to law. necessary it is to look case uidated.” The court Brinkman found that Cole, In re Idaho In Death of prejudgment entitled to interest on the 100-101, (Ct.App.1987), the owing medical bills which became due and Appeals of stated” Court prior paid by timely suit and were not jurisdictions recognize proof [s]ome Aid. provisions policies loss in insurance do sum, jury In returned a verdict require present any not the claimant $156,018.16, awarding represent- Brinkman proof more of the insured’s death than pursuant under- ing him to his benefits due prima a would suffice to establish facie post In insured motorist with Aid. (Citations in a omit- case court of law. motions, sought Aid relief from the trial ted.) Idaho statutes do not contain in attor- trial court’s award for “proof definition or a standard fees, claiming ney the decision was loss.” No Idaho cases have been cited to Aid fur- consistent with I.C. 41-1839. § us, any, nor has our research disclosed $7,622.11 in ther the award contended provide guidance which here. prejudgment pursuant interest to I.C. significant court in It is that the sim- Cole 28-22-104, grant and the failure § ply policies said that insurance cannot re- against the verdict offset in the sum quire proof any than is greater that which pro- (representing insurance case; prima in a required facie not that ceeds received the under- which were from proof equal provide must to that tortfeasor) insured constituted error. required prima is in a facie case of also raises as error the court’s refusal in this death state. prohibit offering from evidence Brinkman 41-1839, total, all Aid’s § regarding at trial education ex- additional case law tell us is that policy, and injury, as a his penses incurred result of require more policies cannot insurance by a would be which Aid contended prima necessary is for a facie proof than tuition collateral in the form of a source proof The law on how much case. is silent cross-ap- scholarship. waiver required. To arrive at more definitive pre- peals the court’s refusal to allow requirement, of minimum we statement upon amount judgment interest the entire proof purpose of loss must examine the of the award. statements. purpose provision for notice and of a
DISCUSSION proofs of loss is to allow insurer rights intelligent of its major This issues form an estimate appeal raises five liabilities, opportunity it an to afford which we discuss turn. will investigation, prevent viding enough and to fraud it with information to inves- imposition upon ''Emphasis (note, it. tigate investigate), add- Aid did in fact ed.) and to determine its liabilities. Aid re- sponded by refusing anything. to offer Am.Jur.2d, “Insurance,” p. 250. § argues it never received the bro- also, Appleman, See Insurance Law and chure, but the trial court found otherwise. Practice, (revised p. 147 edition 1967): conclusion, Brinkman did not have statements, purpose proof However, of loss proof of submit a loss. had he general, so, is to furnish the insurer required with to do bro- been settlement particulars of the loss and all qualified data chure as such. Now we must
necessary to determine meaning justly examine the of “amount thereof, any. if due.” purposes, From these we draw the fol- (2) Justly Amount Due insured, lowing conclusions. The when re- quired policy, to do so under his justly amount due mean an Does provide reasonably the information avail- amount that is somehow ascertained regarding injury able to him his and the company’s receipt the insurance circumstances of the accident. loss, proof ultimately or is it the amount jury? determined We hold that it is provided The amount of information *5 ultimately the amount determined the proportional should be to the amount rea- jury- sonably available to the insured. If the provided give information is insufficient to company If the insurance tenders an opportunity investigate the insurer an agreeable plaintiff, amount that is liability, and determine its the insurer plaintiff accept the the will and that will be Otherwise, deny coverage. the insurer question end of it. The amount is of “what ” investigate must and/or determine its ‘just’ only plaintiff the arises when rights and liabilities. The documentation is company agree. the cannot If insurance “proof.” explanation the The physical of matter, plaintiff pursue the chooses injury and/or financial is the “loss.” goes the matter to court. The deter- distinguished “Loss” must be from liabili- If justly mines what amount is due. ty. The insurer will determine its attorney company right, no insurance knowledge with the that it must be fair and charged. If the fees will be consequences. accurate or suffer the attorney charged. Both right, fees will be go they this when to court. sides realize Although “proof it did not define of equal and inevitable Both sides assume an loss,” Aid’s insurance did state that nature, By very question of risk. person seeking coverage a must submit a can justly what amount is due proof required loss of when Aid. In the law, retrospect, in in a resolved court case, Aid instanu never demanded or re the determination of jury. We affirm quested proof a of loss from Brinkman. Brinkman is entitled to trial court that Hence, by the contractual terms of Aid’s attorney fees under policy, required Brinkman was not own 41-1839. proof submit a of loss as a condition to receipt payment from Aid. II. though required, not Brink- Even the district The next issue is whether man did send a settlement brochure to Aid awarding in court abused its discretion September in mid to late 1985. The bro attorney in fees. generally chure demanded de injuries appealing scribed Brinkman’s and medical ex Parties a trial court’s award penses up attorney incurred to that time. The bro fees bear the burden of demon- particulars strating chure contained of Brinkman’s a clear abuse of a trial court’s Cobb, adequately put pro- It loss. Aid on notice discretion. Tanner v. Estate (1980). least, very A ute. At the falls trial proving court’s fees will not be short of “a manifest abuse” of award well showing a the trial reversed absent An at or near the stan- discretion. award arriving in at contingent necessarily court abused its discretion fee level is not dard the amount awarded. inappropriate and the fact a fee is set at ipso proof that level is not facto of a mani- 54(e)(3)outlines a list of eleven I.R.C.P. of discretion. fest abuse factors which the trial court “shall consid- determining er ... such Regarding argument, Aid’s second it is added.) (Emphasis fees.” This section specif- preferable that the trial court list its require findings on each does not written findings ic on each factor the statute. factor; rather, simply requires it that each However, in such a case such as this with factor “considered.” The word is “con- overwhelming and obvious evidence “writ- read have rule could sidered.” factors, presence impor- of the other or “determina- on” on,” “based ten findings tance of written on each factor is Instead, recognizes it not. tive,” it did findings, lessened. Lack of written in it- judge dis- trial allowing the necessity of self, cannot be considered a manifest abuse fees, de- awarding cretion significance of discretion. The of written consider- a fact-based primarily cision findings provide reviewing is to ation. adequate information with to review. Here, profile provides of the record guidelines a set provides The rule enough presume information to Hence, failure to “consider.” judge for the pertinent judge considered the other factor separate each address specifically enumerated in the factors statute. mani “clear not, constitute by itself does appellant bears the of show- burden follows It of discretion.” abuse fest ing abuse of discretion and we a manifest does factors any of the absence specific assume from the cannot absence presumption create cannot *6 writings that there was a manifest abuse. A clearly erroneous. awarded amount Manifest abuse of discretion must be clear- must of discretion abuse manifest claim of ly by party making demonstrated the successful. affirmatively proved to be importantly, claim. Most this means the only Aid claims that the court con- granted amount must be shown to be clear- sidered one of the factors enumerated in ly equal erroneous. An amount to stan- (e) 54(e)(3) namely, I.R.C.P. subsection contingent fees in the locale is dard same — “[wjhether contingent.” the fee is fixed or clearly is not an amount erroneous. arguments support Aid makes but two $52,000 The fact is the awarded was what first that the fee contention: actually Brinkman’s costs were. roughly equal award was to the fee expenses solely be- Those were incurred charged contingent in a fee contract be- improperly refused to cause attorneys, sec- tween Brinkman and his claim under the contract of insurance. The findings ondly that the absence of written simply the insured amount awarded makes specifically applicable to each factor in the find no error in the trial court’s whole. We proved the factors not con- statute were ruling on this issue. sidered. accept argument We do not Aid’s first III. because the record establishes that several urges Aid next the district argued of the eleven factors were $15,000 holding received erred to the court is no briefed and there basis only from the tortfeasor’s insurer could conclude the court failed to consider each $300,000 used as a setoff to reduce Aid’s just of the factors. It does not follow that liability, being than it because the trial court wrote on the limit of rather $156,018.16 damages contingent against fee element it failed to consider setoff by jury. in the to Brinkman the other factors enumerated stat- awarded In its supporting Finally, argument memorandum a motion Aid’s that failure to (filed summary judgment for De- offset would constitute a to Brink- during windfall 1986), ignores reality man argued this is a first cember that its “limit of party policy insurance claim. Linn v. liability” by should be reduced the amount North Idaho District Medical Service Bu- (the tortfeasor’s) received from Robinson’s Inc., reau 102 Idaho language insurer. In reliance (1981), this Court noted that the windfall agreement, the insurance and the sub- application par- had no in a first motion, stipu- stance of Aid’s ty insurance contract where the insured lated to Aid’s motion summary judg- for actually paid has the insurer to assume the Then, subsequent jury ment. ver- compensation. risk for which it now seeks dict, jury Aid filed a motion to reduce the Affirmed. $15,000 by verdict which had been by changed Robertsons’ insurer. Here Aid IV. position argued The record establishes Brinkman jury be subtracted from the verdict had to attend school year additional liability. rather than the limit of because of the car wreck. It took him five The trial court declined to set off the years four-year program. to finish his amount of the award Northern University Arizona absorbed the received from the tortfeasor’s insurance expense year by of Brinkman’s fifth ex carrier, relying express language on the in tending originally what had a four- been provid- Brinkman’s insurance year tuition, scholarship. year’s That fifth ed: $7,622.11, expense was an caused However, the limit of shall be paid by accident and a collateral source— paid, reduced all sums because of the Accordingly, Northern Arizona. the collat bodily injury by per- or on behalf of the applies. eral source doctrine organizations sons or legally who Generally, the collateral source doctrine responsible ... is as follows: applying After the rules of construction plaintiff compensated Where a is for his applicable policies, to insurance which con- injuries by source independent some strue strictly against such contracts insurance, example tortfeasor — drafter, the court concluded that the general —the rule is that the Therefore, ambiguous. was not it held Aid permitted recovery still to make a full *7 against was entitled to a setoff its himself, against the tortfeasor even ($300,000), liability,” “limit of and not to a though gives this the a double damage setoff from the award. Aid’s mo- recovery recovery or a for he even losses judgment by allowing tion to amend the the never had at all. setoff was denied. Dobbs, Remedies, 8.10, pp. D. Law § (1973). 581-82 Idaho adheres to the collat- policies Insurance are first and foremost Special eral source rule. See Lasselle v. a matter of contract between the insurer 174, Co., 170, 106 Idaho 677 P.2d Products and the insured. en- These contracts are (1983); Gutierez, 487 v. & Co. they forceable to the extent that are valid Swift 82, 86, (1954); 76 Idaho 277 P.2d 561 legal. policy and Aid’s stated that “Aid’s Co., Alesko v. Railroad 62 Union liability by limit shall reduced all Pacific P.2d, 235, 243, (1941). Idaho 878 paid bodily injury by sums because of the added.) (Emphasis persons organiza- or on behalf of the responsible.” legally tions who Through poli- its underinsured motorist added.) (Emphasis nothing The said cy, contractually agreed place Aid itself jury about reductions of Accord- very awards. in the shoes of a tortfeasor. The ingly, correctly we hold the in- trial court essence of the underinsured motorist terpreted applied provisions and company the of the is that the insurance assumes the normally by insurance contract. duties and owed tort- liabilities any still due an in- on amounts do not interest specific tortfeasors feasors when Industries, v. funds) Inc. East (or to cov- sured. Aviation sufficient insurance have Newhaven, Hence, Idaho they Ins. Co. damage er cause. and West the doctrine, (1949) the Court stated purposes the collateral source being less than in the viewed “the amount tendered must be treated and Aid Court, of com- such capable by found due the light as a tortfeasor same It accumulation of damage estop it has caused. the pensating for the tender did At any source debt.” the part collateral of the that the normal interest follows made, by $5,000 were payments Aid cannot benefit two applies. time the rationale just because less the then outstand- having they lessened' far than were Likewise, (earned) expenses. at the good fortune ing Brinkman has medical tendered, $75,000 it was less his tuition. receiving an extension on was time existing damages applies of the then collateral source doctrine one-half than by jury. additional free tuition for an later determined Brinkman’s as set off year education should not be relating response Aid’s liability. against Aid’s The trial tuition, claim it is incorrect to introducing from properly precluded Aid capable of year’s tuition was not be- extra edu- that Brinkman’s additional evidence certainty, computed with ing mathematical Arizo- expense by Northern cation figure a from it was assertainable because na. university publications. y. Brinkman The final issue is whether prejudgment inter was entitled recover court erred Aid asserts upon the entire amount est por- interest on awarding prejudgment award. jury. damages by the awarded tion of governs this is- Code 28-22-104 cross-appeals, asserting that sue: pre- failing erred in to award trial court Legal (1) on 28-22-104. rate
judgment interest the entire interest. — express there is no contract prejudg- When verdict. trial court held interest, fixing a rate of writing cer- different allowed as to ment interest the rate of twelve interest allowed at damages tain fixed economic established year evidence, namely $19,522.08 past on the hundred on: cents $7,706 proven as costs medical (1) Money express due contract. expenses. tuition additional parties to an Aid and Brinkman were that the of interest argues accrual underinsured motor- express contract: $5,000 pay- after Aid made a contract, was tolled By policy. the terms of ist 2,1985 (medical coverage) January on ment obligated compensate Brinkman (on $5,000 September on second the hands of an injuries sustained at coverage) a subse- underinsurance When the underin- underinsured motorist. underin- quent on the advance the center lane driver swerved across sured *8 on November head-on, sured motorists’ endorsement duty to hit Brinkman Aid’s and argues that secondly Aid 1986. required proof of accrued. Had Aid pay not $7,706 for awarded tuition costs have loss, duty pay would come Aid’s prejudgment interest because be accorded proof his Brinkman submitted due when capable liquidated nor the amount was of the settle- statement the form loss com- being event, ascertained mathematical any duty Aid’s ment brochure. In putation. pursuant to the insurance contract pay prior due to trial. came response argument,
In the first duty arose significant insur that Aid’s out has held that where an It is this Court Brinkman, Aid and in an of a contract between company payment tenders ance due, of a tort action. Because con- not out amount less than that which $300,- up to insure Brinkman stop does not serve to the accrual tracted tender injuries 000 for all and losses suffered at statement of the given consideration the hands tortfeasor, of an underinsured factors other than the contigent fee. isAid for prejudgment liable interest on entire amount awarded jury. PART V Prejudgment gener- interest accrues on the 28-22-104(1) provides for interest damages accident, al from the date of the “[m]oney by express on due contract.” because that is the date Aid’s contractual provided contract at issue here However, duties accrued. to the extent it pay damages Aid would that Brinkman was can be established that certain fixed dam- “legally entitled to recover from the owner ages expenses such as medical were not operator any underinsured motor ve- date, incurred until a later that date estab- hicle bodily injury....” because of lishes the commencement of the interest agreed pay provision “only under this obligation. sum, In the entire verdict is after the liability’ any ‘limits of under ap- appropriately subject to the accumulation plicable bodily injury liability poli- bonds or interest, prejudgment provided that the cies have been by payment exhausted $5,000, $5,000 payments $75,-
three and ” judgments or my settlements.... 000 terminate the accrual of interest on view, any prejudgment interest those amounts as of the dates of their must be based on provi- these contractual respective payment. Reversed and re- sions. proceedings manded for consistent with ruling.
this The amount Brinkman was entitled to recover from litigated Robinson respondent, was never attorney Costs to no fees between I agree them. cannot with the appeal. awarded on majority opinion prejudgment interest BISTLINE, J., OLIVER, J. Pro should be awarded on judgment. the entire Tern., concur. The Aid speak contract did not in terms of “loss,” Brinkman’s in terms of the JOHNSON, Justice, concurring and “legally amount he was entitled to recover dissenting. from” Robinson. That amount was not I, III, I parts concur in and IV of the determined until the verdict majority opinion. parts I dissent from II case. and V. As to the interest awarded the trial court, I agree. also do not in- Robinson’s PART II $15,000 paid surer Brinkman the limits of 54(e)(3) requires I.R.C.P. in deter- liability policy September Robinson’s on mining the amount of fees to be 1985. coverage Under underinsured awarded the court “shall” consider the policy, obligation the Aid Aid had no view, my factors listed rule. anything payment Brinkman until that this Court to be able to determine whether By September made. Aid had complied require- a trial court has with this $10,000 $5,000 from the — discretion, ment and has not abused payment coverage medical as an give trial court must a clear indication that advancement from the underinsured cover- the factors have been considered and what age. The amounts received from Robin- weight Here, given to each. the trial son’s insurer and from Aid more than cov- court stated fees were pretrial expenses ered Brinkman’s medical granted “in the full amount of the contin- $19,522.08. Therefore, I would reverse gent $52,006.05.” arrangement of Even prejudgment trial court’s award of in- though evidence had been expenses. terest toas these medical *9 presented relating to the court to some of factors, the other I am not able to deter- SHEPARD, dissenting. Chief Justice judge mine whether the trial considered the factors, so, other and if weight opinion what was I in separate concur the of John- son, J., to I express my ascribed each. would remand for a dis- write to
355
insured,
opinion
today’s
to
does
portion
majority
of the
an
nor
sent to
awarded
attorney
opinion.
majority
fees
which affirms the award of
approxi-
of
plaintiff
in the amount
plaintiff
In
case
demanded
the instant
$52,000.00.
mately
$305,000.00,
the
limits
coverage
the
I
instant
is
coincided with
total
would first note that the
case
amount
policy.
reveals that
involving
first-party
one
a
of an in- under the
The record
claim
against
plaintiff
In
the
offer of
Brink-
sured
his insurance carrier.
final settlement
in
short,
1987
the
paid premium
a
for in- man
made in March of
has
$225,000.00. During the first
coverage
to
surance
entitled
recover
amount
had re-
damages
nine months of 1985 Brinkman
his
from his insurance carrier.
$25,000.00
carriers.
legislature has authorized the
from insurance
Our
award
ceived
It
of 1987 that
attorney
against
first-party
a
was not until November
fees
carri-
$75,000.00in
AID
settlement
pay
er
it
offered
when
fails to
its insured “the
claim,
such amount
and tendered
justly due.” I.C. 41-1839. It is
amount
approxi-
into
That tender was made
statutory
court.
phrase
analy-
which causes
filing
after
mately seven months
problems
sis
in the instant case.
Following
jury re-
instant action.
trial the
from
This case differs
most others con-
$156,-
approximately
turned a verdict of
Court,
by this
and differs substan-
sidered
000.00 in favor of Brinkman.
majority
tially from those cases cited in the
short,
approxi-
jury
In
verdict was
i.e.,
opinion,
Homeguard Sys-
v.
Decker
$81,000.00
finally
mately
above the amount
tems,
(1983);
666
1169
105 Idaho
P.2d
$69,-
AID,
approximately
by
offered
Cobb,
Idaho
Tanner v. Estate
101
000.00 less than Brinkman’s final offer of
(1980);
Martin,
of the will when the po carrier has been “unreasonable its ” determined
sition that will be particular
facts and circumstances of each
case. See also Helmich v. Northwestern Co., (7th
Mutual
1967); Parker Casualty v. Continental
Co.,
674,
(1963);
191 Kan.
P.2d 937
383
see
Co.,
also Belch v.
Ins.
219 Ga.
Justice,
BISTLINE,
dissenting.
Gulf Life
823,
(1964). I
bell, P.2d (1988). evidence, however,
The additional never Appeals opinion surfaces. The Court states:
For we turn corroboration spoken by Campbell words 766 P.2d himself. Idaho, Plaintiff-Respondent, STATE Atwood, Mrs. pri- conversation with Mac or to the of her discovery body husband’s v. police, Campbell told Mrs. Atwood CAMPBELL, Jerry Wayne people that some called ‘the Parker Defendant-Appellant. got to him and brothers ... had that we Payette would find him in the River.’ No. 16313. added.) (Emphasis In another conversa- tion, friend, Supreme Campbell spoke of Idaho. with a Glen Court Bennett, prior discovery of At- .the Dec. 1988. Campbell body. wood’s intimated to had been ‘taken
Bennett that Atwood particular knowledge river.’ This probable body prior of the location together with the discovery condition body by Dr. Maier’s as described fact autopsy and the Atwood’s his back could hands were tied behind