The sole issue in this case is whether the Sebastian County Chancery Court abused its discretion in setting the amount of attorney’s fees awarded to Appellant Lela K. Phelps for her claim against Appellee U.S. Life Credit Life Insurance Company. This is the second appeal of this matter. See Phelps v. U.S. Life Credit Life Ins. Co.,
Our decision in Phelps I reflects that Appellee’s agent sold a credit fife insurance policy to Lincoln Phelps, incident to his purchase of a pickup truck on November 4, 1994. Mr. Phelps died on September 13, 1996, while coverage of the policy was in force, from an acute myocardial infarction with a chronic condition of cardiac arrhythmia. Appellant, the widow of Mr. Phelps and the administratrix of his estate, filed a claim against Appellee, seeking payment of death benefits to the creditor-beneficiary, Ford Motor Credit Company. Appellee refused to pay the claim, contending that Mr. Phelps’s application answers misrepresented his true health condition. Appellee asserted that had it known of Mr. Phelps’s heart condition, it would not have issued the policy and was therefore entitled to rescind it. The chancellor granted Appellee’s request for rescission and dismissed Appellant’s complaint. This court reversed the chancellor’s decision in Phelps I. On remand, the chancellor entered judgment in favor of Appellant, awarding her $12,699.98, plus interest of $2,075.42, and a penalty of $1,524.00. Additionally, the chancellor awarded attorney’s fees in the amount of $5,433.13 plus $651.40 for the costs on appeal.
The record on remand reflects that Appellant sought attorney’s fees in the amount of $11,812.50 for approximately 94.5 hours of work at $125.00 per hour. Appellant also sought fees in the amount of $1,250.00 for the costs to prepare and
Appellee challenged the accuracy of Mr. Walters’s estimation of time spent working on the case. Appellee also questioned the relevance of Appellant’s affidavits, which were taken from another case and specifically referred to the difficulty of representing policyholders on fire insurance claims where they are suspected of arson. Appellee further urged the chancellor to consider the fact that under Ark. Code Ann. § 23-79-208 (Repl. 1999), the attorney’s fee is not the property of the attorney, but is indemnity to the litigant. Thus, Appellee argued that the fee should be limited to the amount that Appellant was obligated to pay her attorney. Appellee contended that the appropriate amount would be between thirty-three and forty percent of the judgment. In support of this contention, Appellee relied on a letter from Mr. Walters to the chancellor, which reflected in part that the case was taken on a contingency-fee basis. The chancellor agreed with Appellee and awarded a fee in the amount of one-third of the judgment and penalty awarded to Appellant.
This court has interpreted section 23-79-208 as providing that “[i]n the event an insurer wrongfully refuses to pay benefits under an insurance policy, the insured may recover the overdue benefits, twelve percent damages upon the amount of the loss, and reasonable attorneys’ fees.” Northwestern Nat’l Life Ins. Co. v. Heslip,
Appellant argues that the chancellor abused his discretion in setting the amount of fees in this case. She asserts that the chancellor should have awarded fees in accordance with the total time Mr. Walters spent working on her case. We disagree. There was no evidence of the actual amount of time spent preparing Appellant’s case. Mr. Walters merely submitted a five-page itemization of particular tasks and the dates on which they were performed. There was no indication of the time spent on each of the tasks; rather, there was only an estimation of the total time spent performing all of the tasks. It is not known how Mr. Walters arrived at the figure of 94.5 hours. Moreover, according to his letter to the chancellor, Mr. Walters acknowledged that his office’s records were not completely accurate, stating that “we had not kept this matter entirely timed during the work we were doing on it
Furthermore, we reject Appellant’s argument that the chancellor abused his discretion in “arbitrarily” setting a contingency fee in this case without explanation. Mr. Walters admitted in a letter to the chancellor that he had taken the case on a contingency-fee basis. The chancellor thus properly considered that factor in arriving at a reasonable fee. See Parker,
Affirmed.
