*1 28-2-306(1) is Griffith award- dealing output and seven the contract. contracts appeal. ed costs and following: provides the quantity measures the A term which EISMANN, TROUT, BURDICK Justices require- or output seller and JONES concur. buyer means such actual out- ments of good put requirements as occur in or
faith, quantity unreasonably except that no any or stated estimate
disproportionate of a stated estimate to the absence comparable prior out-
normal or otherwise
put may be requirements tendered
demanded. P.3d 614 PARSONS, Plaintiff-Respondent, Rena damages may difficult While to deter- mine it clear that the Clear Lakes breach is deprived opportunity of the Griffith to com- INSURANCE MUTUAL OF ENUMCLAW plete performance the contact re- for the COMPANY, Defendant-Appellant. years years and that losses for maining those No. Consequently portion of the occurred. decision court is district vacated Idaho, Supreme Court damages to determine case remanded Boise, January 2007 Term. years and seven. six 2, 2007.
Feb.
VII.
ATTORNEY FEES claims that
Clear Lakes Griffith was prevailing party
not below. The fact
they they initially less than recovered re
quested keep being not them does from
prevailing party. Lakes’ Clear counterclaim change the outcome. The amounts by Clear Lakes
recovered were offsets they obligated the amounts that were Recognition
to pay these Griffith. prevent being
amounts does not Griffith from prevailing party. grant The district court’s 12- fees to Griffith under I.C.
120(3)is affirmed. prevailing party appeal,
As Griffith
is also to reasonable entitled 12-120(3).
appeal. I.C.
VIII.
CONCLUSION af- decision of the is part part and vacated as outlined
firmed The case remanded for this decision. damages years six determination of
Cantrill, Skinner, LLP, King, Sullivan & Boise, appellant. Casey Clinton O. ar- gued.
Holzer, Harrison, Boise, Edwards & respondent. argued. Kurt D. Holzer EISMANN, Justice. appeal challenges
This the reasonableness of the award of fees to an insured pursuant to Idaho Code 41-1839. The in- surer contends that the district court abused in awarding attorney its discretion fees in an contingent amount consistent with the agreement than in an rather amount based hourly upon fee. affirm We court.
I.
AND
FACTS
PROCEDURAL
HISTORY
August
On or about
Rena Par-
(Parsons)
injured
sons
in an
automobile
pursuant
with costs
entirely
negligence
caused
collision
served
41-1839. Parsons
Idaho Code
had an
driver.
other driver
another
day. On
the next
complaint and summons
liability limits of
policy with
of Enumclaw
November
Compa-
$50,000
by Allstate Insurance
issued
Parsons,
ac-
$60,000
she
which
tendered
(Allstate).
by an
Parsons was covered
ny
*3
personal
of her
cepted
payment
as the full
by Mutual of Enum-
policy
issued
motorist
injury claim under the underinsured
(Mutual
Company
of Enum-
claw Insurance
coverage.
claw)
$100,000
provided
in under-
and which
coverage.
3, 2005,
insured motorist
filed motion
October
Parsons
On
pursuant
of
fees
seeking an award
driver,
other
Parsons filed suit
§
41-1839.
to Idaho Code
ultimately
policy
tendered the
and Allstate
of
amount
fees
awarded her
$50,000.
Enumclaw au-
limits of
Mutual of
appealed.
$20,000,
of Enumclaw
and Mutual
payment.
accept
Parsons to
that
thorized
damages ex-
contended that her
Parsons
APPEAL
II.
ON
ISSUES
liability coverage
of
under
the limits
ceeded
adequate
to
provide
1. Did Parsons fail
21, 2004,
policy.
September
On
the Allstate
proof of loss?
counsel,
Parsons,
her
submitted a
through
rule
2.
we revive the
announced
Should
requesting
of
Mutual
Enumclaw
letter
Company
v. Cascade Insurance
Carter
justly
it
under her
“the amount
due”
that an insured cannot recover
and hold
coun-
coverage. Her
underinsured motorist
§ 41-
under Idaho
fees
Code
specify
did not
an amount Parsons
sel
there
evidence that
1839 unless
due,
justly
simply stated
claimed was
but
unreasonably
unjustly in
or
insurer acted
policy
it
limits of the un-
exceeded
justly
failing
pay the amount
due with-
copy
A
coverage.
motorist
of
derinsured
proof
days
receiving the
of
thirty
after
regarding
file
the accident was en-
Allstate’s
loss?
the letter.
closed with
discretion
3. Did
district court abuse its
Mutual of Enumclaw submitted Parsons’s
awarding
fees?
from the
file to a
medical records
Allstate
of attor-
Is Parsons entitled to
award
corporation engaged, among
things, in
appeal?
reviewing
injury
liability
of
business
reviewing
After
Parsons’s medical
claims.
III. ANALYSIS
records,
En-
corporation
sent Mutual of
Enumclaw raises three issues
umclaw a letter dated October
2004. The
below, we
appeal. For the reasons stated
in that
was
primary issue addressed
letter
will
will
the first two issues and
not address
surgical
Parsons’s
fusion at C5-6
only address the third.
and C6-7 done one week after
accident
pre-existing
or to
was related
the accident
an Ade-
A. Did
Fail
to Provide
Parsons
stated,
degenerative changes. The
“It
letter
quate Proof of Loss?
difficult
indicat-
seems more
to make
case
41-1839(1)1 provides
§
Idaho Code
the accident
surgery
wasn’t related to
liable for
fees
that an insurer is
it
indicating
to make a case
was related
to recover
brought
its insured
action
It recommended certain
accident.”
policy
if the insurer failed
however,
investigation,
to be more
additional
“for
justly due to
insured
the amount
surgery
certain that the
was related
thirty
loss
period
proof
after
of
accident.
provided
poli
as
in such
been furnished
has
26, 2004, Parsons filed this
appeal
On October
cy.”
alleges
of Enumclaw
Mutual
seeking
provided
of Enumclaw
proof
lawsuit
Mutual
of loss
it
that the
Idaho Code
comply
amount
due” under the
not sufficient to
to recover “the
was
41-1839(1).
coverage together
motorist
underinsured
whatsoever,
demnity
any kind
nature
provides:
1. The statute
(30) days
period
for a
which shall fail
issuing any policy,
Any
certificate or
insurer
insurance,
pro-
as
guaranty
has been furnished
surety,
or in-
loss
contract
2004, Parsons,
September 21,
On
through
we added to Idaho Code
41-1839 a re-
attorney,
sent a letter to Mutual of En-
quirement that “there must be evidence that
demanding payment
umclaw
unreasonably
unjust-
an insurer has acted
justly due under Parsons’s underinsured mo-
ly
court may
attorney’s
before a
coverage.
torist
Enclosed with the letter
under I.C.
years
41-1839.” Five
later
a copy
of Parsons’s medical records that
Corp.
Associates Discount
Idaho v. Yo-
had been
provided
There is
Allstate.
semite Insurance
nothing in the
indicating
record
por-
overruled that
of Enumclaw demanded
additional infor-
opinion
tion
the Cascade
be-
Insurance
By
mation.
letter dated November
“engrafts upon
cause it
require-
the statute a
$60,000
it tendered
to settle Parsons’s under-
*4
we
ment which
now feel is unwarranted.”
stated,
insured motorist claim.
letter
That
Mutual of Enumclaw asks
tous
revive that
“We have based our evaluation on the docu-
portion of the
opinion
Cascade Insurance
you provided
mentation
to us and
received
that we overruled.
23,
September
2004.”
submitted
brief
opposition
request
in
to Parsons’s
an
for
engrafted
require-
We had also
another
fees,
Enumclaw,
award of
upon
ment
the statute.
In Anderson v.
stated,
Parsons,
attorney,
its
“Ms.
Co.,
759,
755,
Farmers Insurance
130 Idaho
counsel,
through
proof
submitted
of
1003,
(1997),
held,
947 P.2d
1007
we
“Attor-
to
loss
the Defendant Mutual of Enumclaw
fees
be awarded to an insured un-
(MOE)
21,
September
Now,
2004.”
Mutu-
only
der I.C.
41-1839
when the insured
al of Enumclaw contends that Parsons did
option
had no other
to
file suit
proof
not submit a sufficient
of loss.
in
his or her insurer
to
order
recover
Mutual of Enumclaw did not raise in the
years
or
ago
his
her loss.”
in
Four
Martin
trial court the issue of whether
had
v.
Farm
State
Mutual Automobile Insurance
adequate proof
submitted an
of loss. “The
Co.,
244,
(2002),
Idaho
but, rather, by the for the occasioned fees prompt payment of the action to CONCLUSION IV. owing by insurer. judgment affirm the of the district We de- the district court’s problem with the respondent court and award costs on fo- award is that it termination of fee appeal, including a reasonable fee. by factors to work done cused on the related That on the entire claim. Parsons’ Tem TROUT and Justice Pro Justice is, expended from the time the work concur. KIDWELL ease, time through first took the expended Justice SCHROEDER attended oral with the tortfea- Chief settlement carrier, in the the suit argument participate but did not sor’s insurance time opinion. Mutual Enumclaw. concluded larger primarily This focus was the result JONES, J., part CONCURRING attor- the fee affidavit submitted Parsons’ part. DISSENTING day related to work done from the which opinion, I concur with the Court’s with the engaged him. The affidavit did exception portion up- 54(e)(3) of that of Part IIIC contain a breakdown of the I.R.C.P. holding amount of the fee award and they pertained to the action factors as awarding HID I appeal. Part would I of Enumclaw. Mutual believe court’s failing vacate and re- limit the district court erred in mand for the amount of inquiry determination of focus the additional fees of its fees necessitated suit of this have been result action. of Enumclaw. noted in v. Farm Bureau This Court Wolfe Ins. agree portion I Part IIIC operation I.C. 41-1839 holds wherein the Court that Parsons was requires an action filed court and to be entitled to an award of a reasonable filing of that an action is commenced with the fee under 41-1839. I.C. This Court made certainly a fee award can complaint. While *7 clear in v. State Mutual Martin Farm Auto- work, preparatory such as the letter include 244, 248, mobile Insurance 61 attorney Mutual Enum- Parsons’ sent to P.3d 605 “if the 21, 2004, the September along claw with on thirty company days makes no tender within information, proof it would encom- of loss not ... is liable for amount of [it] reasonable attorney’s the mat- pass her entire work attorney fees, compensation the insured’s as in ter the time first retained him from she Here, make to the insured whole.” rather July of 2004. $100,000 making a tender than the less policy by Parsons or 54(e)(3) limits demanded advis- requires that the trial I.R.C.P. ing Parsons that the of loss was insuffi- court, award, setting the of the amount fee cient, therein, Mutual of chose to remain Enumclaw all eleven factors stated consider thirty days following silent for more than the plus any additional factor the court deems demand, attorney making Lettunich, itself liable for appropriate. Lettunich (2005). § 41-1839. fee under I.C. 425, 435, 111 inquiry The this must con- focus of also be view, my the erred in In district court hand, larger action not fined to the at some inquiry. fee failing to narrow the focus of its failing controversy involving parties. By the 41-1839(1) provides § that an I.C. insurer the with- to confine its examination of factors justly pay fails the amount due which the context the suit days after policy under a within receiv- Enumclaw, the district court erred. action ing proof of loss “shall thereaf- situations, pay analogous ... In we have held brought against the insurer such ter attorney to be adjudge statutory the fees are confined further amount as court shall dispute by particular out, the covered the statute. it turns As both Parsons and her 7-911, § attorney profited by Under I.C. attor have allowed virtue of fee the full matter, hearing After for an action to confirm enforce award. the the fee attorney underly Parsons’ submitted additional af- an arbitration award but not for the fidavit, $20,000 indicating the how additional Corp., arbitration. Driver v. 139 Ida SI be (2003). According would divided between them. In ho $20,000 attorney, aggre- the the would be performance payment suit enforce a $60,000 gated with the and the bond, one-third attorney we have allowed fees under contingency applied fee would be § not for I.C. 54-1929 but the defense of a Thus, combined sum. instead of getting brought counterclaim breach of contract $40,000 that she would have received if Mu- Precast, in the same action. Oldcastle Inc. v. tual of Enumclaw had been earlier Inc., Parktowne Const. tender, $53,336. making its she would receive $26,664, get Her would instead purpose The of I.C. 41-1839 not fur- is $20,000. by thered awarding Parsons the full amount not It is clear from the record whether the contingency agreed upon fee that was district court its considered this factor in lawyer between herself and her for the entire light determination. This factor came to af- penalty claim. I.C. 41-1839 is “not a but is hearing, ter the where the court had recited compensation an additional sum rendered as factors, it had considered Rule 54 when the insured entitled to recover but no mention was made in the eventual policy, prevent the insurance ‘to sum Nor, decision. was written there mention provided being therein from diminished made in either instance the court expenditures the services ’ ” had considered the fact that a had demand Martin, ... Idaho at 61 P.3d at $100,000 been made the amount of but 604. The evidence before the court district amount due later be was determined to agreed was that had Parsons her $40,000 obviously less. This would be anoth- contingency a one-third fee for er factor relevant to consider. amounts recovered for the entire claim. Thus, respect to the motorist uninsured estimation, my fee court’s claim, Parsons her one was excessive because the court did “justly Although third the amount due”. inquiry confine to the amount of fees policy limit of demanded necessitated lawsuit $100,000, $60,000 settled for as the she Enumclaw. I would vacate award and Thus, being justly due. amount her back remand to the district for deter- $20,000. was to On of the fees that mination amount of the court hand, recovery would be respect finds to be reasonable with $40,000. purpose of I.C. 41-1839 *8 section 41-1839 suit Mutual of Enum- by insuring be would served would claw. I not determine Parsons to suit fees incurred prevailing party and would not award recovery. eat Enumclaw would not into this appeal.
However, some- saw it court, differently. According to “it
what to me that this statute is
seems intended whole, give
make this client her the 20 words, back.” In
grand
court believed that the statute intended claim, cover her fee for the entire required
rather the incremental filing preparing the suit Mu- bring pay-
tual of Enumclaw to about the
ment.