*1 COMPANY, CONTINENTAL INSURANCE Appellant,
UNITED STATES AND FIDELITY GUAR- COMPANY, Appellees. ANTY
No. 2547. Supreme Court of Alaska.
Aug. 4, 1976.
H23 Hughes, Thors- Jacobus, Kenneth P. Powell, Anchorage, ness, Lowe, Gantz & appellant. Henderson, Lytle, Roger Houston E. & appellee. Anchorage, for
OPINION BOOCHEVER, J., C.
Before BURKE, CONNOR, RABINOWITZ, DIMOND, Tern. Pro JJ., and J. RABINOWITZ, Justice. at- award of questions the This declaratory judgment torney’s fees insurers, United States two action between Continental Guaranty Co. Fidelity and issues at The substantive Insurance Co. concerned that action the core of of defense insurer had wrongful death recovery in and actual the de- tendered had suits. Continental Fidelity’s refusal Fidelity. Upon fense to defense, set- tender paying wrongful actions tled death Con- its insured. $250,000 behalf of $250,000 plus recovery of sought tinental Fidelity. These the costs of defense from In- in Continental answered issues were Fidelity and v. United States surance Co. 430 (Alaska Guaranty 1974),1 we held where that while ful death actions. Our mandate to the indemnify was not liable to Continental in court indicated that no costs or wrongful actions, death did owe a fees were appeal.3 allowed on duty to defend. We stated: Upon remand the court award- fact, vagaries
Given the
in both
Fidelity,
law and
ed
party,
*3
wrongful
$18,836.16
the
death actions were at
attorney’s fees.4 This amount
potentially
least
within the coverage of
by Fidelity.
included the full costs claimed
policy
Therefore,
the U.S.F. &
against
$18,836.16
G.
....
U.S.F.
the
award of
&
fees,
G. should have undertaken
the trial court offset two-
[defend
defense,
Northern’s
and the failure
costs,
sevenths of
ant]
Continental’s defense
to do so was
duty
a breach of
sulting
the
in
net recovery
Fidelity
of
of
by
defend
$15,228.43.
created
the insurance cont
ract.2
total amount of
We concluded that Fidelity
awarded, $18,836.16,
should bear
included the costs
two-sevenths of Continental’s cost of
by Fidelity
de-
claimed
both before and after
fending
wrongful
the
death actions.
an offer
judgment,
We
which had been
Fidelity
also held that
had no liability
by Fidelity5
tendered
in the course of the
pay the damages recovered in
wrong-
original litigation,
the
and to the costs borne
upon
wrongful
briefs, petitions
memoranda,
1.The
circumstances
which the
unless oth-
predicated
by
death action was
are
in
discussed
erwise ordered
the court.
opinion.
that
A brief
review of the facts
See also AS 09.60.010.
understanding
should be
of assistance
the
(Attor-
4. Alaska Rule of Civil Procedure 82
appeal.
Corporation
instant
Northern
con
ney’s Fees) provides
part:
Cooper
tracted with Robert
for the
Prevailing Party
(a) Allowance to
as Costs
having Cooper
haul
rock in his trucks.
Continental; Cooper’s
Northern’s insurer
(2)
money judgment
In actions where the
Fidelity
Guaranty
was United States
determining
is not an accurate criteria for
(hereinafter “Fidelity”).
Co.
As a result of
prevailing side,
the fee to be allowed to the
Cooper
the death of
and one of his drivers
the court shall award a fee commensurate
hauling,
in the course of
an action was
legal
with the amount and value of
services
brought against Northern.
in
Northern’s
rendered.
surer, Continental,
tendered defense to Fidel
parties agreed
money judgment
ity
theory
Fidelity,
on the
under an om
here was not an accurate criteria for de-
policy
nibus
clause
with Northern
termining attorney’s fees.
(which
any organiza
included
the insured
“legally responsible”
provides:
5.
tion
Alaska Rule of Civil Procedure 68
the use of
Cooper’s
any
trucks),
days
obligation
had
At
time more than 10
before the
to defend
indemnify
begins,
party defending
Upon
against
Fidelity’s
Northern.
re
upon
defense,
party
fusal of the tender of
claim
serve
the adverse
instant
brought.
against
Ultimately,
wrongful
action was
offer to allow
be taken
settled,
money
property
paying
death
him
action was
for the
or
or to the ef-
entirety
specified
offer,
obligation
fect
his
with costs then
Northern’s
under
days
agreement.
accrued.
If within 10
after the service
settlement
H25 addition, follow if appeal. receives an Fidelity on affirmative recovery, grounded on Con- but rather is held that interest which superior court on party prevails ceased on defense claims the main Here costs of issues.8 tinental’s bar, in the Fidelity Fidelity’s poten the offer of case at the date made where as of $18,836.16 liability payment tial re Against of the judgment. actual covery fees, wrongful off- in the great death actions ly potential exceeded its defense for the set two-sevenths of Continental’s defense, recovery by cost of costs, net Fi- main issue resulting in a cannot Thus, said $15,228.43. be the cost of defense.9 delity of light potential lia indemnification point first Continental’s bility exposed in error in court was matter, supe say cannot par- “prevailing holding to be rior court erred Fi its conclusion that ty” fees within entitled to delity prevailing party. was the Rules of Civil Pro- *4 argues regardless Continental next argues that since it cedure. prevailing of whether it was money (two- party with- ultimately awarded 82, in the $3,670.13), Civil Rule the su- costs sevenths defense or as perior failing court erred in to it Fidelity of our determination that a result costs defend, prior and fees incurred duty not had to and judgment 68 tender- prevailing party. to Rule offer of was the by Fidelity. ed judgment The offer of The determination of which by Fidelity $8,001, plus made was for in- vested, party prevailing party is the Ultimately, terest costs. and Continental’s instance, judge’s the first the trial disc recovery amounted to less than offer. appeal only retion6 and is on reviewable 68, of Rule Rules of who abuse.7 Determination Procedure, of Civil prevailing encourage is to settle- automatically is does party not issue, though sequent liability main to the even not offer. When the of one original party by contention. He is extent another has been determined judgment, one in whose favor the decision verdict or verdict order or but judgment rendered and the entered. or extent of be remains to de- Sons, by proceedings, party & v. In Owen Jones Inc. R. Lems C. termined further Co., (Alaska 1970), adjudged judg- P.2d 312 497 an offer of liable make recovery progress sought $119,663.12 ment, which shall have same effect as an light payments made to a offer made if contractor. before trial it is served within recovery $7,363.- days pri- not ultimate affirmative reasonable time less than 10 plaintiff argued judge 12, hearings trial abused its or to the commencement of deter- liability. finding mine the that defendant was amount or discretion extent awarding $10,000 prevailing party as Liberty Co., Leasing v. 6. DeWitt 499 P.2d stated, “It was fees. This court (Alaska 599, 1972) ; Sons, 601 Owen Jones & had resolved clear the main issue been Co., 312, v. Inc. C. R. Lewis 497 P.2d 314 against appellants plaintiff] when [the (Alaska 1972). obligation appellee had no found that progress payments Liberty Leasing Co., 599, . v. . . 7. to refund its DeWitt 499 P.2d “ (Alaska 1972) ; Palfy Rice, not an immutable 497 at [I]t v. 473 P.2d P.2d 314. 601 (Alaska 606, 1970), rule obtains affirmative who 613 and cases cited prevailing recovery must considered the therein. (citations party.” P.2d at 313-14 497 v. In Buza 395 Columbia Lumber omitted). (Alaska 511, 1964) (footnotes omitted), 514 dictionary 9.Indeed, insurer defines we said: “ indemnify dictionary . . one that contracts . states that ‘PREVAILING predominant,’ applies esp. New . . Third another . .” Webster’s to that which is Compare, Dictionary by at 1173. has case law that International and it been established Guaranty g., e. United States to a suit is the one Williams, successfully prosecutes A. 660 148 Md. Go. v. who the action or successfully against it, prevailing (1925). defends pro- litigation and to avoid include 82(a) civil Civil Rule the allowance ment of fee, litigation.10 the offer ac- of an it is that the tracted 'When clear settled, pursuant cepted [plaintiffs] entitled and the action were is then vested with the trial court incurred to the date determining judgment. attor- of the offer of “wide discretion” ney’s fees, of fees will be and awards set Appellant seeks to Jakoski elevate only aside where it is discretion is shown mandatory to the level of a rule which clearly further abused.11 Civil Rule 68 requires judge a trial in to award costs provides proceed if the action does prior curred judgment an offer of judgment, . all instances. We decline to extend finally is not more obtained the offeree approved Jakoski that far. There we the offeree favorable than must the trial court’s exercise of discretion after the incurred awarding such costs; say here we cannot the offer.” judge his abused discretion Holland, Jakoski failing to award them. as there are Just (Alaska 1974), the 577-78 defendant made costs, sound reasons for awarding such an offer of there are reasons for doing First, so. plaintiffs’ recovery. exceeded The trial require Rule 68 itself does not that costs judge awarded offer of plaintiffs up to the time of the offer Thus, awarded. it is clear such awards judgment and then to defendant awarded are the trial Second, court’s discretion. *5 attorney’s fees incurred after that time. to automatically award such costs en appealed, contending Defendant that there courages offerees to continue pressing proper was no basis for the award Third, appellant’s suit. construction of attorney’s (plaintiffs’ attorneys fees Civil Rule 68 po would act discourage to kept inadequate records), and that tential offerors from making offers of inadequate award to him was in view of judgment general, in especially and as the his attorney’s affidavit to the effect that progresses mount, case and costs because fees incurred amounted almost twice as to by virtue of the tender of they offer ap- much as were awarded. In dictum we would be binding themselves to finance proved superior court’s attorney’s opponents.12 fees of their pre-offer attorney’s fees stating: general In we think appellant’s that in terpretation provides
Since the rule that encourage, would judgment discourage settlement, allow “with costs then ac- thereby defeat ing crued” and since costs under the intent Alaska underlying Civil Rule 68.13 (b) Dominick, plaintiff 10. Miklautsch v. time 452 P.2d assure that should it (Alaska proceed 1969). attorney’s fees, with suit even lost, only in the event would be those Larson, v. See Albritton Estate 428 P.2d fees incurred from that date hence. 1967). (Alaska 383-84 Albritton presented, we held that the record the fail- on argues 13.Continental also it was error attorney’s any presettlement ure to award fees superior for court to award was a not clear abuse discretion. attorney’s entire amount of its fees incurred simple example during 12. A will suffice to illustrate this ease at the trial level. This con- problem ruling such would occasion. A tention will be discussed As a sub- infra. point might bring argument appellant of this a suit of nuisance value asserts asking $100,000 damages. attorney’s the award to The defendant fees it may honestly $5,000, feel the suit is worth to its offer of was willing figure and be error. The same definite reasons which cause us to forego contingent attorney’s greater that, general, risk lia- hold awards of bility. appellant urges, Were we to rule as fees offerees are within trial court’s $5,000 applicable resolving discretion are defendant’s offer of as this days (a) point. before trial The award of would bind defendant fees is vested pay plaintiff’s preparation up judge. in the to that sound discretion of the trial costs
H27 Larson, v. Estate ty. See Albritton awards as automatic Just 1967). Con- (Alaska 383-84 prior to offers that the court’s sequently, we hold pressing offerees to continue encourage point not an abuse on this simply decision suit, make such awards refusals to ultimately discretion. the offeree the basis that on large as judgment as fails to recover in this Appellant’s third contention encourage ac- may act
offer tendered appeal is that was error on fairly ceptance do not of offers which Fidelity the attor part court’s infringement compensate the offeree appeal in the earlier ney’s fees it incurred conse- The automatic legal rights. of its ap opinion on to this court. In our obtaining judgment not more quences of whether, peal no mention was made unaccepted than an earlier favorable whom, and if so costs and Any addi- spelled in our Rule 68. are out However, in our fees be awarded. should consequences im- which a tional we directed that neither mandate poses normally in its discretion should was to be awarded costs record, supported by reasons so that IV, the Alas fees.14 Article Section IS of reviewing determine whether court can provides part that the ka Constitution been Here the su- discretion has abused. Supreme shall . make Court perior court failed to indicate reasons for practice and promulgate governing rules pre-offer attorney’s awarding fees to procedure criminal cases in civil and beyond the offeree the fact that all courts.” Pursuant constitu- prevailing party with- the offeror was promulgated Rule grant, this court tional of the rule. Rules, Appellate which vests the' dis- However, to determine costs and cretion previously as we indi- have appeals in this cated, pertaining to court. (ap- in no sense could Continental short, by general, this court pellant rule offeree) regarded “prevail- authority con- has the to award ing party” within the meaning of Rule 68 Supreme nection to the with an or Rule 82. Unlike situation And, by of our Holland, Court of Alaska. virtue Jakoski where the offeree was *6 case, pre- in we have mandate the instant prevailing party (though a within Rule 82 neither viously determined that Con- 68), consequently not within Rule had Fidelity tinental nor was to awarded right attorney’s a to some fees under that appeal first any pertaining to the rule, costs here it is difficult to conceive of a Thus, it was this we hold that court. why the reason offeree is entitled to re- superior court to have error for pre-offer attorney’s cover fees. While appeal in con- Fidelity awarded costs on superior court’s doing reasons for so are Rules, 29, Appellate of Rule clear, travention not the record here does disclose at in the case and the mandate issued appropriate an instance to accord the trial bar.15 ruling presumption court’s some of validi- supra. a read- 6, 7, supra,. Nothing It is clear from 14. See note in rules
Footnotes
our
ing
Appellate
Rule 29 that our decision
of
prevents
judge
awarding
attorney’s
a
from
attorney’s
appeal
fees on
award
not
costs
prior
fees incurred
to an offer of
degree
a limited
fact that
was based on the
an offeror which
less lia-
to
bility
incurs
appeal.
parties prevailed
In
former
both
pay.
addition,
In
than it offered to
represented
legal
addition,
there
issues
parties
prevailing
award of
fees
subject
complex
to differences
were
independent
support
under Rule 82 furnishes
opinion
this court.
within
awarding
prevailing
party
this
fees in-
for
judge
judgment.
prior
15. In
the trial
contained
If
a letter
curred
to its offer of
we
attorneys
by
record, appellee’s
indicated
virtue
our
hold that
offeror
directly
paid
expenses
precluded
recovering attorney’s
which
done and
from
fees
work
$8,182.50.
pur-
amounted to
to the
we defeat
related to
simple
by discouraging
Thus,
pose
this
matter
to deduct
it
be a
of Rule 68
will
from fees awarded.
amount on remand
such offers.
ap-
Fidelity’s legal
costs on
Appellant’s
contention
Continental.
fourth
Thus, Fidelity
us
peal
it
of discretion
would have
hold that
is that was an abuse
Fidelity
trial
full
to be
to award
court
award
costs
judge
for the trial
losing
long
as the
party
fees in-
borne
so
amount of its
entire
Second,
automatically.
leading case on the
award is
made
curred. Our
issue
not
legal
Fidelity argues
that its actual
costs
awarding the full amount
requested
Penney
greater
were far
than
claimed be-
fees
is Malvo v. J. C.
those
requested attorney’s
1973).
cause their
fees did
(Alaska
H29 recovered defense at- on the costs awarding full its discretion abused opinion, it, this court’s earlier pursuant to think Fidelity. we Here to torney’s fees judgment date of from the controlling. are Jakoski Malvo and judgment. to date of Jakoski we said: running of held that of attor- ascertaining amount tender of stopped upon Fidelity’s interest suc- be allowed a defendant fee to ney’s Chism, v. judgment. In Davis the offer than less holding a verdict cessful 1973), held 475, we (Alaska 513 P.2d 481 use the should judge his judg- general rule an offer that as where in a case general criteria as same specifies only total amount ment which prevailing party. We is the a defendant prejudg- including as is to be construed criteria recently discussed such prejudgment We likened ment interest. there Penney C. Co. We Malvo v. J. there compensatory damages interest “manifestly it is unreason- that stated less is “[m]oney asserted that worth full automatically to award able” it is Davis clarified the later received.” by a attorney’s fees incurred in State and limited our earlier assertion recog- prevailing party, although we (Alaska Phillips, v. 470 P.2d 274 be situations might that there nized 1970), that ¿ward justified. be such an would where was reiterated that the allowance We carry . damages should 11 [a] compensat- partially of ac- the cause interest from time party. prevailing ing a accrues, reason some tion unless for an peculiar case such Holland, individual Jakoski 578-79 v. injustice. do an of interest would In the award (Alaska (footnote omitted). 1974) we cannot Con case at bar characterize here relies our discussion Continental declaratory judg tinental’s claims in its since proposition in Davis for vexatious, frivolous, or de ment suit as adjudged money has lost the use of the good void of faith. Nor can we find it, up ought compensated owed unreasonably pro any way Continental money ques- the time received. Thus, longed in this case.20 tion thus raises now wheth- we conclude that the award of full attor bar interest er the case at an award of ney’s aside. fees to be set must be held judgment after the offered could why We think the reasons injustice within work applicable equally Malvo held was error are Phillips. judge think that a trial We .21 here discretion, properly, as exercise of on a to award an offeree interest refuse specification Continental’s final judgment from the date of is that the error court erred when, through date pre failing interest (Alaska 1974), upheld to in Malvo 20. These factors we alluded we less an award of (1973), Penney prevailing party’s J. G. than half of the part: where we said after offer of citing recognize refused, Malvo. there Jakoski indicates that where (in party’s good losing have our concern with a faith did not evidence Malvo) equally applicable good and all of to awards of at- faith claim or defense torney’s *8 fees under Civil Jakoski Rule 68. the the justified, judge might not an choose held that is abuse of discretion to well were complete requested post-offer less than fees. full of fees award the to question faced Here we are with the it is an abuse whether of discretion to award 16, supra. 21. note See good full when in fees has been positions faith. It is clear the of the parties good g., were held faith. E. note supra.
1130 ultimately .if here, judgment finally recovers the offeree less ob- the view, tained offeree is not more than the our favor- amount offered. offer, able than the pay this flows from the functions the offeree must conclusion procedural of offers after the of the which the device ultimately offer.” The offeror is judgment serve. who successful under Civil 68 should not Rule judg offer of makes an When be paying burdened with the cost of in- ment, acknowledges legiti effect refused, terest after the offer is for this macy of a claim to the amount offered. is a cost of the of the litiga- continuation accepted, If that offer the lawsuit ends. that, is a tion. This cost under Civil Rule accept If the offeree does the offer not should be borne the offeree.23 ultimately prevails in an amount part, offer, part. very which exceeds the size Reversed affirmed Re- its judgment testimony validity proceedings of the manded for not inconsistent opinion. accept. of its to with this refusal But the failure accept to offer ultimately proves which
to judgment exceed the forces the offeror ERWIN, J., participating. not to its continue defense of the action and BOOCHEVER, money it, by Justice, retention of virtue Chief concur- of its prepared DIMOND, give ring, to with whom Pro offeree at Justice Again, Tem., judgment joins. time. ultimate ly is indicative the soundness of the of- separate that I must file con- I find evaluation, feror’s which trial court at glance currence on an issue which first may By take forcing into account. the might appear relatively por- minor be a money, offeror retain its the offeree majority opinion. tion of The upon defeats the rationale which awards holds that a trial court exercise its of prejudgment based, interest are name discretion as to whether not to ly» paying for the use wrongfully re has who money. tained offeror effect has rejected judgment, ceived and an offer of indicated it does not wish to retain that period filing of time between the money and the offeror’s retention can of the case the date the offer. I hardly regarded voluntary.22 as majority unnecessarily believe that the in-
Additionally, jects Civil 68 uncertainty ap- Rule can be read area into the to support the plication refusal pre- to award the of Civil Rule 68 which can judgment interest hamper attorneys deciding claimed Continental. whether to noted, supra, As provides part accept judgment, make an offer of or to course, mandatory 22. language Of in a narrow sense retention is of the rule would voluntary appear because the could offeror offer the instances where indicate that all money conditioning acceptance judgment, proves pre- without its to exceed the foregoing By judgment ought of suit. Were this to he the interest be awarded. case, however, statute, however, prejudgment of the offer of interest should judgment rule, namely, put litiga- right. end to as a See be awarded matter of AS tion, addition, ; Phillips, 45.45.010(a) would be defeated. as a State v. practical matter, (Alaska 1970). such view retention as is rec- This conflict “voluntary” ignore reality judge by holding would has onciled regard situation one where on a discretion to interest party foregoes legal right proves each to maintain than an less position (which potentially may its be vali- as a of suit and thus offer of cost dated) certainty in return for the of immedi- a resolution of within Rule 68. Civil Such believe, ate will, settlement. effectuate matter legislative prejudgment inter- intent to award Wright Of. Miller, unduly penalizing C. & A. Federal Prac- est who without (Civil) (1973). prepared opponent tice & Procedure at 56 § what opponent’s. “rightfully” State v. See Phillips, supra at 273 n. 6.
H3J plus be specified be for a sum holding will also such costs. offer. The such Attorney’s normally litigation computed over fees will be of additional likely source pro- on the of the frequently amount offer under either already contested too the of the “without trial” or allowance “non-contested” with reference visions schedule of Rule 82.2 attorney’s fees. example given by Under the dictum the ma- agree with the
I do not
accepted,
jority in
is
Footnote 12
it is
of
where
desired
an offer
when
is
to make a
discretion-
“nuisance”
of
fees
settlement offer of
allowance
$5,000.00,
metaphor
attorney
of Alaska’s
the
should have
dif-
ary. To use
no
opinion
ficulty
adds
streams,
majority
computing
approximate
the
the
glacial
amount
waters,
the
the fee
be
already murky
whereas
allowed. The
silt
amount of
quite
the offer
terms of Civil
can
application
accurately
gauged
of the
be
combined
clarity.
so that
the
produce
party making
821
Rules 68 and
should
the offer will
know
total
be
amount
four situations
There are
including
incurred
the allowable costs and
judg-
that an
arise in
event
offer
fee
the event that the offer
of-
Rule
1)
is
ment made under
68:
accepted.
is
rejected,
is
2)
offer
accepted;
fer is
In the
rejected,
event that the offer is
than. the
plaintiff
more
and the
recovers
plaintiff
if the
more
recovers
than
3)
offer is
offer;
offer,
amount of the
he
be
will
entitled
than
jected,
plaintiff
and
recovers less
to a
par-
normal
a prevailing
allowance as
offer,
is
still
the amount of
but
ty
and
fees under the
is re-
prevailing party;
the offer
4)
and
provisions of Civil Rule 82.
jected,
less than
and the
recovers
is
but
not the
amount of
If the
rejected
and
offeree
prevailing party.
recovers less than the amount
of-
prevailing party,
fer but
still
he
situation,
first
Under the
offeree
should
receive
reasonable allowance
provisions
entitled under the
of the rule
his
prior
costs and
accrued to
costs and
to the date of the offer.3
majority
in
date
the offer. The
Finally, we have the
involved
explicably
re
situation
states that Rule 68 does not
present
where
offeree
quire
to an offer
that costs
recovers less than the amount of the
spe
be
Rule
awarded.
68
par-
the prevailing
judgment to
cifies that the offer allow
be
ty.
sued
to recover
taken
then
In Alas
“with costs
accrued”.
$250,000.00
82,
paid
ka,
on behalf
at
under Civil Rule
costs include
Northern Insurance in settlement of a
torney’s
The offer therefore must
fees.
Holland,
569,
(Alas
procedure
Jakoski v.
P.2d
578
520
1.Rules
should
construed
1974).
harmoniously.
Treadway,
ka
See State v.
88
420,
157,
;
(1960) Zuni
Ariz.
ga
357 P.2d
158
following
2.
82
schedule:
Rule
has
Gity
Tucson,
Ariz.App. 220,
v.
5
425
122,
(1967) ;
v. McIn
P.2d
124
Hoffmeister
AVE-
FEES IN
ATTORNEY’S
tosh,
(Wyo.1961),
reh.
361
680
P.2d
RAGE CASES
denied,
1
364 P.2d
See also Barron and
823.
Non-
Without
Holtzoff,
Procedure,
Federal
Practice
Trial
Contested
Contested
;
Edition,
(1960) Wright
§
Rules
139
2,000
$
First
15%
25%
20%
Miller, Federal Practice and Procedure:
Civ
3,000
Next $
12.5%
20%
15%
il,
(1969).
1029
Rule
Criminal
§
Of.
5,000
Next $
10%
12.5%
15%
92;
Appellate
46 and
Rules 1 and
Rule
Civil
$10,000
Over
5%
7.5%
10%
Anchorage
Scavenius,
City
v.
539
Holland,
578
3. Jakoshi
(Alaska 1975).
(Alaska 1974).
previously
We have
held that Civil
construed with Civil Rule
should
*10
wrongful
$40,000.00
death case.
It also
its
sought
would still be
prevailing
attorney’s
and
defending
fees in
so,
party.
my
If
opinion,
he is entitled
wrongful
appeal,
death action. On
we
to costs and a reasonable attorney’s fee to
held that Continental was not entitled to
hand,,
date of offer. On the other
if
$250,000.00payment made,
recover the
but
there is a
verdict,
defense
similarly
if
that was entitled to two-seventh’s
the main issues are resolved in the favor
attorney’s
opinion
pres-
fees.
on the
defendant so that he is to be re-
garded as the prevailing party,
plain-
ent
correctly
Judge
affirms
Carlson
tiff is not entitled to any attorney’s fee
in his holding
pre-
was the
even for
performed
services
during the
vailing party
though
even
re-
portion
of time
to the
judg-
offer of
$3,670.13.
Sons,
covered
Owen Jones &
permit
ment. To
the trial court to exer-
Inc. v. C. R. Lewis