*1 BISTLINE, Justice, concurring dissenting part. EMERY, Plaintiff-Respondent, Carol
I. v. opinion correctly recognizes majority INSURANCE COM- UNITED PACIFIC have that ATI could filed action PANY, Washington corporation, Simplot applicable statute before Defendant-Appellant, waited, Instead, ATI limitations had run. I peril. ground its concur On majority opinion’s determination of Porter, Douglas Defendant. James appeal. No. 18502.
II. Idaho, Supreme Court fees, as my In dissent from the award Boise, December 1990 Term. before, I “to stated continue adhere Donaldson, Bistline, J. and J. assertions July Inc., Developers, Minnich Gem State 911, 919, 1078, 1086 (1979), has inherent that this Court neither statutory authority
nor to award appeals____” Lowery v. Bd. on 1079, 1082, Com’rs, County (Bistline, (1990) specially
P.2d J. Furthermore, had
concurring). this Court on
begun to the award restrict Nem-
appeal. Brower v. DuPont De See
ours & opinion may un- majority Today’s
fortunately beginning of the rever- be trend. This not
sal that welcome awarding
suggest that a contract clause can dis- prevailing party
fees to the be in a
regarded. where it was inserted Even only one
bargained contract favor for an parties, it has the basis been
award. has it that regard, recollection pro- developed has case law which
Montana in a provision
vides that unilateral only one never-
contract which favors favor construed
theless will be who, if well, depending only on
the other phi- prevailing party. That
anyone, is the soundly principled
losophy my view is over- operate diminish the
and should place may where
reaching take have
parties to footing.
equal *2 make
arbitration award to an award of during were incurred proceedings, course of arbitration may whether be general damages commencing awarded on injury. from the time 29, 1987, plaintiff-respon- June On dent, Emery, pedestrian Carol was a in- Porter, jured car when a driven James a struck her in crosswalk. Porter was an liability underinsured motorist whose insur- $20,000.00. policy paid Emery Emery ance insurer, amade claim her defen- dant-appellant United Pacific Insurance provi- under the underinsured motorist sions her had limits which $300,000.00. 16,1988, September Emery
On submitted a formal loss accident, describing the facts of the her injuries, diagnosis, prognosis special damages she had incurred as a result of Emery for accident. Counsel valued $625,000.00. her In response case claim, Emery received a letter from United 18, 1988, Pacific dated October it $20,000.00paid for demanded credit Porter’s insurance carrier and offered an $28,000.00 compensation. additional Em- rejected ery Pacific’s United offer and on 30, 1988, November filed suit in the district damages, court for attorney fees, declaratory a judg- costs and Chartered, Brady, Lerma, Saetrum & January action. On ment after the Boise, attorney defendant-appellant. filed, district court action had United Reynolds, argued. Kent Y. petition compel Pacific filed a arbitration Davison, Boise, Copple, Copple Copple, & pursuant upon to I.C. 7-9021 and plaintiff-respondent. Copple, E. Don arbitration clause contained insur- argued. policy. The district court ordered ar-
bitration on the limited issue of the amount BOYLE, Justice. would be enti- provi- tled under the underinsured motorist appeal In this from the district court’s sions clause of her insurance granting summary judgment, order we are called to determine panel whether it was The arbitration $281,853.96 Thereafter, proper confirming damages. for the trial court in Proceedings compel stay I.C. § 7-902. (a) application (d) Any involving On proceeding action or arbitration. — showing 901, agreement 7- described section stayed subject issue to arbitration shall if be Code, provision in a written [a application an order for arbitration or an submit con- section____ therefor has been made under this arising troversy parties], between ... proceed court order shall arbitration ... fees. in to an award of Award parties executed a Satisfaction argues if $280,000.00. Emery then amount of contract, including an insurance of Arbitra- filed a Motion for Confirmation *3 clause, attorney invokes the arbitration Summary a Motion for Award and tor’s pro- during the arbitration fees incurred 1) following Judgment issues: ceeding are not recoverable. prejudg- entitled to Emery was Whether accident; of from the date ment interest states, 7-910 I.C. § to 2) Emery entitled at- and Whether was agree- in the provided otherwise Unless district court torney and costs. The fees arbitrate, ex- the arbitrator’s ment Emery’s and held that she granted motions fees, ex- together with other penses and interest from was entitled to fees, in- including penses, not counsel date the accident until the the date of the arbitration, curred in the conduct of the satisfied, pursuant and I.C. award was paid provided as in award. shall be attorney in fees added.) 41-1839 (Emphasis § $49,381.25. United Pacific the amount 7-910, regard this With to I.C. § summary appeals from the pro interpreted the statute Court has interest and awarding Emery prejudgment scope of beyond an arbi vide that it attorney fees. attorney powers to fees trator’s award a contractual of the absent
one
I.
Bingham County
to do so.
Elec.
v. Interstate
Comm’n
Attorney Fees
Award of
However,
that
attorney
sought
fees
an award
upon an
does
ex
limitation
arbitrator
12-120(3),12-
pursuant to I.C.
and costs
§§
authority
the district court to
to the
tend
54(d)(1).
121, 41-1839,
The
I.R.C.P.
and
41-
attorney
pursuant
fees
to I.C.
award
§
Pacific had
that
trial court found
United
frivolously
as to base an
not acted
clause contained
The arbitration
attorney
I.C. 12-121
fees under
award
§
states
contract2
insurance
54(d)(1),and that the case was
I.R.C.P.
parties object, arbitration
that unless
12-120(3)
of I.C.
scope
not within
§
rules of the
under the
be conducted
will
transaction
a commercial
since it was not
A re-
Arbitration Association.
American
by the statute.
as defined
that no
demonstrates
view of the record
pursuant
However,
trial court ruled
pro-
made to the arbitration
objection was
Pacific
that United
to I.C.
41-1839
those
ceedings being
§
conducted under
attorney
in-
Emery’s
pay
obligated
Associa-
American Arbitration
rules. The
litigation process,
during
following
the entire
curred
relevant
Rules contain the
proceedings.
including the
arbitration
which state:
provisions
of attor-
appeals
for either
witnesses
expenses
asserting
pursuant
to I.C.
ney
producing
party
paid by the
side shall be
clause con-
expenses
and the arbitration
7-910
All
witnesses.
other
such
§
contract, attorney
required
arbitration,
in
insurance
tained
expenses
been awarded
of the arbi-
travelling
fees should not have
and other
during
and the
representatives,
they were incurred
and AAA
extent that
trator
the cost of
any
expenses
Pacific con-
witness
proceeding. United
arbitration
request
produced at the direct
any
pursuant
to I.C.
cedes
§
arbitrator,
equally
shall be borne
of the
in a court action
recovers
insured who
they agree other-
by
unless
parties,
entitled
terms of
contract
enforce the
party may
damages, either
the amount
Pacific
in the United
clause
2. The arbitration
Such
part:
demand for arbitration.
pertinent
make a written
states
the rules
be conducted under
will
person disagree
whether
we and
covered
If
unless
Association
legally
dam-
Arbitration
person
to recover
the American
that
ages
objects...
operator
person
of an under-
owner or
or
covered
from the
we
agree
do not
vehicle or
motor
insured
wise or unless the arbitrator
presentation
those associated with the
expenses
award assesses
such
or
witnesses.
required
Where the insured is
against any specified
thereof
compelled
by
to file a lawsuit
reason of
parties.
pay
an insurer’s refusal
order to re-
cover under her insurance
we
states,
As the above rule
rule
implicit
hold it is
in I.C. 41-1839 that the
proceedings
of arbitration
par-
is that the
adjudge
court shall
a reasonable award of
expenses
ties must bear
all
of arbi-
the insurer.3 This
except
tration
expenses
those
of witnesses
Court has further held
that the
paid
are
to be
producing
fee authorized
41-1839
such
is not a
provided
witnesses.
*4
penalty, but an additional
Rules,
the American
sum rendered as
parties
Arbitration
the
just compensation.
may agree modify
Halliday
any
this rule in
Farmers
man-
Exch.,
293,
they
ner that
Ins.
89 Idaho
choose.
Co., (1965). In the instant action the I.C. trial court provides 41-1839 pertinent in ruled that part: was entitled to prejudg § ment interest on the entire award from the attorney 41-1839. Allowance of fees in date of the accident. (1) argues suits Any insur- insurers. — that this was error in issuing any general er that the policy, certificate or con- damages portion insurance, of the unliqui tract of award was surety, guaranty or dated, and indemnity any reasonably kind or ascertainable. nature whatso- ever, asserts that which shall was not period fail for (SO) prejudgment to recover thirty days proof loss has after until the amount of damages provided furnished as in was deter poli- such by mined the cy, contract, arbitrator and a certificate or decree en pay to the disagree. tered. We person entitled thereto the amount justly due under such policy, certificate In awarding prejudgment the contract, shall in action thereafter trial court relied on our recent holding in brought against the insurer in any court Co., Brinkman v. Aid Ins. in this state for recovery under the terms (1988). Brinkman, the policy, of the contract, certificate or pay insured similarly injured was by an under- such amount as the court shall further insurer, insured motorist. The Aid Insur- adjudge reasonable attorney’s in fees Company, ance pay Brinkman, refused to such (Emphasis added.) action ... causing him to file suit to recover under Pursuant implied to this term in the insur- the underinsured motorist clause of his in- contract, parties the agree that policy. surance A jury returned a verdict obligated pay insurer is attorney if awarding $156,000 damages. Brinkman in compelled the insured is to file suit to re- The trial court Brinkman looked to I.C. cover under the insurance 28-22-104(1) As an provides which prejudg- § implied term the insurance the ment “money interest on statutory language of I.C. 41-1839 modi- contract” and found that Brinkman § general
fies the American Arbitration As- entitled to interest from the sociation rule that the must bear date of the accident on the medical bills expenses arbitration, all except which became owing prior due and to suit loss; I.C. 41-1839 days § limits awards of proof within 30 of such 1) 3) to those instances where the insured compelled bring has the insured thereafter is provided required by of loss as Reynolds suit to recover for his loss. v. Ameri 2) policy; insurance company the insurance can Hardware Mat. Ins. pay justly fails an amount due under Justice, BAKES, concurring timely paid by Aid. Chief were not asserting that appealed prejudg-
Brinkman dissenting in part: have been allowed ment interest should jury entire amount of the I damages. Pursuant general 28-22-104(1), this Court held
to I.C. § agree portion I with the of the Court’s stating, favor of I.C. 41- opinion which holds under duty significant It that Aid’s arose out plaintiff be awarded attor- should Brinkman, of contract Aid and between litigation. ney relating fees incurred Aid not out a tort action. Because today’s opinion to the effect of up to contracted to insure Brinkman for repeal provisions $300,000 injuries suf- for all and losses award shall provides that hands of an underinsured fered fees. The best resolu- not include counsel tortfeasor, Aid liable prorate two these statutes is interest on the entire amount portion caused between jury. Prejudgment interest accrues from the date portion litigation, and that incurred *5 accident, is the date because conducting the arbitration. It has contractual duties accrued. Aid’s always statutory rule of construc- P.2d at 1234-35. 115 Idaho 766 interpret conflicting provisions to two presented case 2 give meaning. The facts in the instant as to them some both strikingly in Brink- are similar to those Suth.Stat.Const., (2d ed.); Lewis 516 it was not error man. We therefore hold Com’n, Taxpayers v. Fair Political Prac. prejudgment trial to for the court award (2nd 991, 898 Cal.App.3d Cal.Rptr. 212 260 commencing upon the entire award interest Dist.1989) (“[Ujnder general rules statu- from date the accident. construction, first to tory courts must seek important It to that the Brink- is note which re- harmonize and reconcile statutes applicable very limited man decision is thereby subject matter and late to the same is set facts. The decision Brinkman avoid, possible, interpretation if at all not, contends, applicable appellant as the to be would cause one the statutes actions, The all tort or all contract actions. give ignored.”). Prorating fees would is limited to actions Brinkman decision meaning 41-1839 and 7-910. to both I.C. §§ ac- first insurance contract based on proration. I would for that remand involving tions an underinsured motorist similar to the one contained clause situa-
Brinkman’s insurance
II
this,
an insured files
tion such as
where
com-
suit
his or her own insurance
prejudgment
As to the award of
pany
payment
for
under an underinsured
earlier deci-
opinion follows our
the Court’s
clause,
motorist
the insured
Co., 115
AID Ins.
sion
Brinkman v.
award,
prejudgment interest on the entire
346,
(1988),
766
1227
P.2d
damages,
award
prior
contrary
literally dozens of our
injury.
from
time
Brinkman v. Aid
that,
in con-
have held
even
cases which
346,
1227
115 Idaho
766 P.2d
Ins.
cases,
will be
no
interest
tract
(1988). Therefore, we affirm the trial
damages
allowed
the amount of
where
on
award
interest
court’s
Stoor’s,
De-
unliquidated.
v. Idaho
Inc.
beginning from
damage
award
entire
Recreation, 119 Ida-
partment
Parks &
the date of the accident.
(1990);
83,
v. Ho-
P.2d 989
Barber
ho
803
in all
trial court’s order is affirmed
(1989);
767,
780 P.2d
116 Idaho
norof
respects.
respondent.
Costs to
No
Services,
Business
Davis v. Professional
awarded.
(1985);
810,
Inc.,
109 Idaho
228,
Flandro,
Mitchell
BISTLINE,
McDEVITT,
v.
JOHNSON
(1972);
Development Corp. v.
JJ.,
Farm
concur.
918,
Hernandez,
prior
judgment, for in that event the
based liability where the amount of
liquidated capable of ascertainment * * * processes mere mathematical has allowed interest from a time
Court