Potomac Residence Club v. Western World Insurance

CLUB POTOMAC RESIDENCE

Woodley Housing Corporation,

Appellants,

WESTERN WORLD INSURANCE

COMPANY, Appellee.

WESTERN WORLD INSURANCE

COMPANY, Appellant,

POTOMAC RESIDENCE CLUB and

Woodley Housing Corporation,

Appellees. 95-CV-1266,

Nos. 95-CV-1268. Appeals.

District of Columbia Court

Argued Jan. 1997. Dec.

Decided

Amended Jan. Jr., Western Moore, Stephen subject to certain exclusions. whom R. John L. with Rathvon, pay Washing- agreed Mysliwiee and James P. World ton, DC, brief, in appellants on the for were shall Residence] [Potomac all sums which appellees in No. 95- No. 95-CV-1266 and pay as dam- legally obligated to become CV-1268. any liability arising out of ages because act, or omission ren- negligent error DC, Grimaldi, Washington, F. for David failing professional to render dering or appellee appellant in No. and 95-CV-1266 type in the de- described services No. 95-CV-1268. above, whether scription of hazard shown any person by the insured or committed SCHWELB, KING, RUIZ, Before and insured.... employed Judges. Associate “professional services” as policy The defined SCHWELB, Judge: Associate counseling and health “mental rehabilitation According to the terms of housing.” principal question presented The obliged to defend policy, World was Western appeal is an insured is entitled to whether Resi- any action instituted Potomac recover its counsel fees a successful action dence, any allegations if of the suit “even declaratory judgment for a in which the in- or groundless, are false fraudulent.” liability sured has established insurer The contained a “sexual action ex- wrongfully in a tort refused defend it as an endorsement clusion” which was added brought against action third insured provided policy. The exclusion as impres- parties. is one of first follows: jurisdiction. sion in this We answer it

affirmative. for agreed coverage It that no exists brought against insured

claims or suits action. damages arising from sexual I. includes, hut is not limited Sexual action to, any behavior with sexual connotation THE FACTS purpose—whether performed for sexual policy. A. The insurance discrimination, intimidation, gratification, coercion or other reason. operates Potomac Residence Club several programs mental health in the District of agreed It further this exclusion Woodley Housing Corporation, a Columbia. applies alleged if an cause of the even subsidiary corporation” or “sister of Potomac negligent hir- damages was the insured’s Club, House,” ‘Woodley owns Residence act, supervision, ing, placement, training, opinion, psychiatric halfway house. In this error or omission.

we shall refer to Potomac Residence Club added.) (Emphasis Woodley Housing Corporation collective- action” exclusion modified The “sexual ly as “Potomac Residence.” Owners’, Liability and Tenants’ Landlords’ In the fall of Insur- Western World Liability cov- Professional Insurance and the Company comprehensive gen- ance issued apply to Western erages, but did liability policy to Potomac Residence. eral obligations if Potomac Residence World’s types coverage: policy provided three inju- causing personal allegedly was sued (i) Owners’, Liability Tenants’ Landlords’ and Liability coverage, ry. Injury The Personal (ii) Insurance; Injury Liability In- Personal separate forth in a schedule which was set (iii) surance; Liability In- Professional policy, obligated Western attached to surance. to World all sums which pay on behalf of the insured policy, terms of the

Under the legally obligated become indemnify Resi- the insured shall agreed to Potomac World (here- injury pay damages because of Resi- for “all sums which [Potomac dence injury”) sustained “personal obligated called legally shall become dence] arising out any person organization bodily injury,” damages because of ... declaratory judgment following C. The action. or more of the offenses of one conduct of the named committed 27,1991, December Potomac Residence On insured’s business: complaint Zeenders’ forwarded the West- arrest, im- Group A-false detention or inquired coverage. as to On ern World prisonment 24, 1992, responded January Western World or indem- obligation that it no defend had eviction, Group C-wrongful entry or respect to the nify Residence with Potomac private right other invasion of the occu- complaint. World relied Zeender Western pancy[.] exclusion. solely policy’s sexual action on the litigation. B. The Zeender brief, Potomac Residence According to its 19, 1991, pay legal representa- for Cathy afford to On December and Ramon could not law firms of complaint against in Zeender matter. The Zeender filed a ten-count tion Kator, Scott & Superior Piper Marbury Potomac in the Court. L.L.P. and Residence & Potomac Resi- complaint alleged agreed represent was based on the ex- Heller Prieto, ploitation Cathy fee, only Zeender Karen if the defense dence without but counselor, at a time Potomac Residence insurance. costs were not covered Zeender, suffering who was when Mrs. pro bono counsel September In Disorder, Multiple Personality was a resi- informed Western World Potomac Residence half-way dent of Potomac Residence’s house. offered to attorneys had that the Zeenders’ alleged The Zeenders that Ms. Prieto en- litigation within settle the Zeender Cathy gaged relationship in a sexual with limits, requested that Western World and through Zeender from December again respond offer. World Western January alcohol 1991 and that she drank or indem- any obligation to defend disclaimed Zeender, though Prieto with Mrs. even Ms. January In nify Residence. Potomac improper knew that these activities were and informed for Potomac Residence counsel potentially patient. The com- harmful to the re- that if Western World Western World plaint alleged Ms. Prieto caused that mediation participate in a scheduled fused to dissociate,1 contrary to the Mrs. Zeender to litigation, Potomac in the Zeender conference plan prescribed treatment for Mrs. Zeender its file suit to vindicate Residence would psychiatrist. her re- rights policy. Western World under Maeda, complaint, According to the Edith 12, 1993, fused, Potomac February and on Residence, the executive director Potomac this action Residence instituted improper learned of Prieto’s conduct Ms. Superior in the Court. Western World Cathy alleged with Zeender. The Zeenders that, Residence complaint, Potomac contrary to the directions of Mrs. Zeen- its declaratory judgment psychiatrist, permitted prayed Ms. for a der’s Ms. Maeda duty Poto- employment owed a to defend Prieto not to continue her Western World case, Residence, in the Zeender Potomac but also to main- mac Residence with duty. Po- relationship Cathy World had breached tain her with Zeender. Western it the court to award tomac Residence asked The Zeenders claimed that the defendants’ alia, it had constituted, expenses counsel fees that of fi- conduct inter breach defending Zeender in duciary duty, battery, false im- incurred to date assault and fees that litigation, as as the costs and prisonment, intentional infliction of emotional well declaratory distress, prosecuting in its supervi- incur gross negligence, negligent would Potomac Residence also sion, They prayed judgment action. of contract. breach that Western punitive the court to declare compensatory and asked for an award of indemnify obligated to Potomac million dol- damages totalling one hundred World might be any amounts that Residence lars. causing to dissociate complaint, Mrs. Zeender According "[d]e- should avoid to the Zeenders' personalities." fendants knew ... that their role was to assist into of her they integrating personalities, [that] 23, 1994, Wynn is- September to an adverse On paid pursuant the Zeenders Opinion and Finally, a second Memorandum negotiated settlement. sued judgment or Resi- held that Potomac complaint in its in which she Potomac Residence included Order its costs had not entitled to recover alleging that Western World dence was a count prosecuting the declara- denying coverage. acted bad faith and counsel February action. On tory judgment for sum- Residence filed a motion Potomac “finding persuasive no evidence mary judgment it reiterated reasonable,” the plaintiffs costs are not position complaint. taken $273,- judge Western World ordered motion, opposed again relying on World thirty within to Potomac Residence 306.37 policy. sexual action exclusion of the counsel fees for the days as reimbursement acknowledged in its memo- Western World defending the Zeender incurred in and costs opposition to Potomac Residence’s randum litigation. “in- alleged actions motion that Ms. Prieto’s 2,1995, at Potomac Residence’s August On cluded but not limited to behavior [were] consent, World’s request and with Western (Em- purpose.” with sexual connotation or certified for inter- Judge Stephen G. Milliken added.) opposing In Poto- phasis addition deny- Wynn’s rulings locutory appeal Judge motion, mac Residence’s Western World counsel Residence its costs and ing Potomac summary judgment on all cross-moved action, dis- declaratory judgment complaint. counts of the faith, refusing to missing its claim of bad 6, 1994, July Wynn Patricia A. On rulings Those prejudgment award interest. Opinion and Order in issued a Memorandum are now before us for review.2 had which she held Western World duty to Potomac Resi- breached its defend II. complaint and was against dence the Zeender arising damages liable for out therefore JUDGMENT THE DECLARATORY concluded, Judge Wynn inter that breach. ACTION alia, com- allegations that the in the Zeender A. review. Standard of plaint concerning Prieto’s unauthorized Ms. judge that Potomac Resi- The trial held trips to restaurants and with Mrs. Zeender to recover its counsel is not entitled dence necessarily in connota- bars were not sexual declaratory judgment action. fees in the purpose, that there was there- tion and law, review ruling one of and we That potential coverage under the Profession- fore Abdullah v. judge’s de novo. decision judge Liability portion policy. al (citation (D.C.1995) Roach, negligent hiring also held that the claim for omitted). poli- supervision was not barred concluded, cy’s judge exclusion. The sexual authorities. B. The however, no of bad that there was evidence part, and she faith on Western World’s of the dis- begin our discussion We judgment in granted summary favor West- noting legal positive issue as to the bad faith count. ern World American jurisdiction follows “the every party to a ... Rule under which 1, 1994, following receipt of August On fees, its own case shoulders order, Potomac Judge Wynn’s counsel for only in the litigants from other recovers in- World Residence submitted Western statutory authority, a contrac presence of in the the costs and fees incurred voices for narrowly-de arrangement, or certain tual prosecut- suit and defense of the Zeender as the exceptions,” such law fined common declaratory judgment action ing the instant exception. faith” conventional “bad refused through 1994. Western World June Techs. Commu- invoices, T. Co. v. United claiming they were Oliver Carr these (D.C.1992) A.2d nications excessive. lawsuit Zeenders’ challenge obligation to defend the appeal, World does not On against Residence. holding a contractual Potomac judge’s that it had the trial (citation see, omitted); generally, Alyeska other courts4 have sustained awards pre- of counsel fees the kind of situation Pipeline Soc’y, Serv. Co. Wilderness Although sharp disagree- sented here. 240, 257-61, 1612, 1621-24, 44 U.S. 95 S.Ct. among ment the courts reflects that the issue (1975). us L.Ed.2d Western World asks difficulty,5 agree we with Poto- free denying to sustain the trial court’s decision mac Residence. in the Potomac Residence its counsel fees action, declaratory judgment claiming that obtaining liability policy insurance precedents required we are to do so our in- provision obligating which contains a applying the American Rule. Potomac Resi- against surer to defend covered claims contends, hand, insured, on the other that this policyholder attempting dence qualitatively provide case is different from those advance the defense purpose which we have followed the American Rule claim it. The insured’s such past, adopt ap- securing and that we should such a is to transfer to the Maryland many retaining proach of the courts3 and insurer the task of counsel de- See, "subjective misleadingly pe- e.g., Shippers deemed a and often Bankers & Ins. Co. v. Electro Enters., Inc., shown); Hayseeds, jorative concept,” 287 Md. need not be (1980); Cas., Cohen v. American Home Assurance Inc. v. State & 177 W.Va. Farm Fire (1969); Balti- (1986) 255 Md. may (policyholder 352 S.E.2d re- more Gas & Elec. Co. v. Commercial Union Ins. Co., successfully cover counsel fees whenever he sues 540, 496, (1997); Md.App. 113 688 A.2d 514 claim; property damage his own insurer over Ass'n, 327 Collier v. MD-Individual Practice Rule, "eminently good cf. Md. American which makes 1, 537, (1992). 607 A.2d 544 For historical circumstances, badly” "works sense” in most reasons, respectful and other we accord most “dispari- of the the insurance context on account Maryland consideration to decisions of the Court ty bargaining power company between States, Appeals. See Ford v. United (often policy by dynamics holder exacerbated the 1245, (D.C.1992) (citation ” omitted). 1252 n. 16 bureaucracy)).... of the settlement however, Ford, Maryland we follow As in the primarily of the their cases cited because force of that we cited have The courts in the cases have reasoning. rulings. articulated various rationales for their declara- Some have held that counsel fees in the See, Co., e.g., Penney Green v. I.C. Ins. 806 Auto tory judgment consequential constitute action 759, (7th Cir.1986) (citing F.2d 765-66 Illinois damages flowing directly the insurer’s from Supreme Conway Country decision in v. Court's breach. Others have treated the insurer’s refusal Co., 934, 938, 388, Cos. Ins. 92 Ill.2d 65 Ill.Dec. policy obligations the to honor its under as 245, (1982)), 442 N.E.2d 249 but cf. other coun- authorization to the insured to retain 1245-1246, (dis King’s opinion, post at note 14 have been in the lan- sel. There variations cases); cussing appellate intermediate Illinois guage policies courts. of the before different Co., Cycle, Savoy Inc. v. National Ltd., Reinsurance decisions, these The common theme all of 61, (7th Cir.1991); McGreevy F.2d 64 938 v. however, application is that of the American Co., 26, Oregon 731, 128 Wash.2d 904 P.2d Mut. Ins. inappropriate now Rule is in the kind of scenario (en banc); (1995) Olympic 735-36 S.S. Co. before this court. Co., 37, 117 Wash.2d 811 P.2d Centennial Ins. 673, Pitrolo, (1991); 681 Aetna Cas. & Sur. Co. v. following among 5.The authorities are those fa 190, 156, (1986); 176 W.Va. 342 S.E.2d 159-61 position: Shepard vorable to Western World’s Underwriters, v. State Auto. 293 Brown & Cas. Co., Maryland Marine Constr. Co. Cas. 73 Mich. 822, (Minn.1980); Gordon-Gallup N.W.2d 825 62, 541, (1976); App. New 250 N.W.2d 543 Realtors, Co., 468, Ins. S.C. Inc. v. Cincinnati 274 834, Christy, Hampshire 200 N.W.2d Ins. Co. v. Reese, 38, (1980); 40 Wheelerv. 835 265 S.E.2d Gonzales, (Iowa 1972); Lujan 845 84 N.M. 572, (Colo.App.1992); City Willough- P.2d 577 229, 673, (App.1972); P.2d 682 State Farm 501 Co., by App.3d 26 Ohio Hills v. Cincinnati Ins. 266, Vails, 177 Mut. Auto. Ins. Co. v. 278 Ala. 146, 31, (1986); 499 N.E.2d 34 see also Missouri 821, (1965); Virginia Sur. So.2d 826 Carter v. 811, Wong, 676 Med. Ins. Co. v. 234 Kan. P.2d Co., 595, 324, (1948); 187 Tenn. 216 S.W.2d 113, (insured (1984) to award of 122-23 entitled Sammons, Ga.App. Maryland Cas. Co. v. declaratory fees insurer’s unsuccessful counsel (1940); Realty, 11 S.E.2d Bonnie Owen coverage); judgment action to establish lack of Co., Ill.App.3d Co., Inc. v. Cincinnati Ins. Family Gibson v. Farm Mut. Ins. 294, 300, (Me.1996) (insured 219 Ill.Dec. 670 N.E.2d 1354-55 & n. 2 entitled (1996); Cas. v. American Ambassador declaratory Mikel to recover counsel fees in insurer’s (Ind.App.1994); Clemmons duty 644 N.E.2d judgment action if insurer’s to defend clear, v. Zurich Gen. Accident & Liab. Ins. enjoy "the insurer should not the usual (La.App.1969); and So.2d American litigate concern about the freedom to without Brown, Family possibility having party’s Co. v. S.W.2d pay the other Mut. Ins. fees”; faith,” (Mo.App.1982). "bad which the court insured, It it failed to do so. event that the insured is fend the case duty, to its and should adopt guessed wrong as by party. If were to sued a third we consequences upon by compelled us Western bear position urged by these World, wrongfully If the rule laid down an insurer who re- thereof. then followed other authori- irrevocably deprive the courts should be to defend could fused ties, actually permitting amount to principal insured of one of the benefits would that which paid premiums. its Even insurer to do indirection which the insured is, often, in- directly. That ultimately—and if it could not do the insured were case, belatedly—compensated right a to have actions quite sured has contract insurer, suit, at its party’s of the third him defended for its defense him into permanently expense. out of If the insurer can force insured would remain and, declaratory declaratory judgment proceeding pocket expenses for the action, compel compelled to in such judgment though action which it was even it loses litigation, expense of such bring as a result of the insurer’s breach of its him to bear the finan- duty. actually that the no better off contractual We do not believe the insured is deny cially if had never had the contract American Rule was intended to counsel than he where, here, in- right to an insured mentioned above. bought paid premi- its sured 7A A. (quoting A.2d at 235 Id. 258 John ums in order to secure its freedom from APPLEMAN,INSURANCELAW AND PRACTICE having to defend lawsuits and to counsel (1962)). § court stated that propounded by fees. The doctrine “produced the current situation insurer had prevent World would Potomac Residence defend,” id. at it refused when enjoying very benefit for which it policy containing bargained bought when it speaks having of its whether one terms duty-to-defend provision. expenditure by its failure to authorized the speaks in terms of defend or whether one Cohen, case, supra In note as in this the declaratory attorney’s fees for the the provide insurer declined to a de- defendant being part of the dam- judgment action a plaintiff, fense for the in violation of the by by American ages sustained the insured liability policy. terms of a insurance Like contract, wrongful breach of the Home’s Residence, plaintiff Potomac the obtained a hold American Home bound to the we declaratory judgment establishing that the bringing Mrs. Brown in fees incurred unjustified. insurer’s refusal to defend was declaratory judgment action to estab- the court, alia, plaintiff asked the inter lish that American Home had not done declaratory an in award of counsel fees the agreed that which it had with her to do. judgment Noting action. that some courts grant “in had declined to such relief Id.6 fraud, faith, or liti-

absence of bad stubborn Co., supra note Olympic Steamship In insurer,” part giousness on the of the policy question provided in the insurance Maryland Appeals, in a unanimous Court of right “shall have the the insurer opinion, adopted following assessment against the insured duty to suit defend leading in a treatise: issue personal seeking damages on account of ... damage[.]” Id. 811 P.2d But, upon injury property or despite qualifications placed in- parties that the Third claimed requiring rule a show- at 676. [courts to them as a result of the ap- it still sured was liable ing equivalent], of fraud or its salmon. packing of certain cans of unfair to the insured. After defective pears to be filed, in- had been all, Although no lawsuit the insurer had contracted defend Collier, however, In Maryland Appeals 607 A.2d at 542-43. 6. The Court of has declined rule, duty-to- policy did contain a in extend the Cohen and it has held that in the language provision. from Collier showing defend a that the insurer acted in absence of faith, dissenting colleague, post quoted by at our an was not entitled to recover bad insured We have no declaratory judg- in that context. must be understood fees in a successful its counsel express agreement or coverage either brought occasion here to to establish under ment action Collier, holding disagreement in Collier. policy. supra with the note a medical insurance protected insurance to be that the insurer deal with chased the sured demanded expenses incurring attorney’s fees and parties’ claims. The insurer denied from the third Pitrolo, at 160. coverage, litigation.” and the insured settled with the 342 S.E.2d from view, parties against third and instituted an action In the court’s Supreme of Wash- the insurer. The Court attorney’s in courts that refuse those ington the insured’s claim on the sustained declaratory judgment require or a action merits held that the insured was entitled showing that the insurer acted bad faith against to recover its counsel fees the suit unreasonably refusing or defend east insurer: an unfair burden on the insured. Whether right also extend the of an insured to We good to defend was in an insurer’s refusal recoup attorney fees that it incurs because largely faith is irrelevant once or bad pay the an insurer refuses to defend or the insurer has been established insured, justified action claim its with its insured. breached contract regardless a lawsuit is filed whether quote Id. The court then went on the insured. Other courts have forth passage Appleman from the treatise set recognized disparity bargaining opinion, supra. Id. at page 1233 of this power company between insurance policyholder the insurance con- its makes substantially tract different from other us has been addressed The issue before Hayseeds, Inc. v. commercial contracts. E. Keeton & Alan I. some detail Robert Cas., 323], Widiss, (1988). [177 State Farm Fire & W.Va. The discus- Insurance Law (W.Va.1986). 73, 77 When an 352 S.E.2d especially in this instructive sion treatise is insurance, purchases insured a contract respect unique problems that with protection expenses arising context, from McGreevy, it seeks arise the insurance “vexatious, litigation, time-con- quote from it supra, 904 P.2d at and we suming, expensive litigation with his insur- length: at some in- er.” 352 at 79. Whether the S.E.2d typically has A denial of an insurance claim sured must defend a suit filed third an insured. consequences several action, appear declaratory parties, First, any time of an there is denial case, damages as in this file a suit for claim, obviously ex- insurance that action insurance contract obtain the benefit period during which the insured tends case, every is irrelevant. the conduct of must incur the adverse economic conse- imposes upon the insured the the insurer quences of the loss without the benefit [of] compelling of the insurer to honor its cost being by indemnified the insurance. Sec- and, thus, equally is burden- commitment ond, litigate an insured who is forced to to insured_ Further, allow- some to the legal expenses— recover insurance incurs attorney ing an award of fees will encour- include, which but are not limited to the prompt payment age the of claims. attorney—to charged by an secure the S.E.2d at Third, payments. many in- insurance 811 P.2d at 681.7 variety consequen- of sureds also sustain a Pitrolo, including harm to problems, tial credit supra In note the court held an duty standing and loss of business. When an which its to insurer breached compelled litigation to resort to counsel insured is defend was liable to its insured for benefits, insured declaratory to insurance by the insured in a recover fees extended what, at least coverage. to is denied indemnification judgment action establish instances, very significant many is a that “to otherwise would be court stated hold insured, pur- aspect of the economic risks incident originally who unfair to the tially McGreevy Oregon supra from other commercial con- note different In v. Mut. Ins. Washington tracts,” Supreme reiterated disparity bargaining Court of in terms of both holding Olympic Steamship Co. The court its obtaining purpose power and because "does not do violence to stated that its decision litigation avoid and the such insurance is to fees," attorney rule on 904 P.2d the American expenses at 736. associated with it. Id. substan- because "an insurance contract is not receive com- Residence will sought the insured tomae hazards counsel fees pensation at all for its costs and pur- protection when the insurance was Like the Thus, declaratory judgment action. payment when the of insur- in the chased. that we have cited only insured courts in the cases made after an ance benefits that, others, partic- in the attorney many we conclude sought has the assistance of an coverage litigation of insurance legal process, the insured ular context and the us, a result is such legal expenses but also is of the kind now before sustains added unacceptable. right prompt denied the to indemnification

(which to is one of the risks insureds seek insurance). through acquisition considerations M.A.P. avoid C. Stare decisis Ryan. ^[*] * * ^[*] King argues dissent If, the insurer is found to have because of M.A.P. obliged, under the doctrine court is claim, reasonably (D.C.1971), an rejecting apply acted Ryan, 285 A.2d 310 recovery is limited to award require insured’s Potomac Res- American Rule and due, the of insurance benefits the amount counsel fees. do its own We idence cover- provided the insurance amount agree. recovery is re- age—after the insurance of Co- parties have cited no District payment insured’s duced none, precedent, and we have found lumbia lawyer’s litigation ex- fee and other deciding question whether the squarely penses—is obviously The net diminished. applicable to a situation American Rule actually amount received such a claim- one, in insured has present like the which the indemnify the ant is then insufficient to specific purpose paid premiums its insured, falling often far short of that pay coun- avoiding any obligation to retain or reasonably anticipated which the insured sel, insurer’s breach has and in which the an insurance benefit would be available as representation insured the denied the that resulted as to offset the economic loss right under the terms of which it had a consequence of the insured event. Siegel case to this one is policy. The closest 7.7(c),

§Id. at 871. Inc., Sons, & E. Bookhultz William (1969). ease, U.S.App. present appellants In the counsel for D.C. that, insured was Siegel, if the court held that the represented have to the court Poto- and coun- litigation to recover costs mac Residence had not been able to obtain entitled declaratory judgment pro legal representation, sel fees incurred bono coverage where insurance obligations of its under the action to establish World’s breach (1) erroneously pro- refused have Potomac Residence the insurer would driven investiga- after a “dubious providing out of its business of mental health vide a defense (2) insured’s tion”; steadfastly resisted the premiums, Having paid services. Poto- defense; right to a attempts right expect that it to establish mac Residence had a (3) in- “obviously helpless an counsel or and abandoned required would not be to retain come,” leaving the might to whatever litigation expense. at its own When sured conduct Id, predicament.” at it, “hapless in Poto- insured a declined to defend Western World Although the court at 725. suddenly with F.2d was confronted mac Residence “ignore the in- it could not in also stated that representation the need for two lawsuits— the insur- action, expense litigation where sured’s in the Zeender and defendant motivated, er, honestly acts at its declaratory judgment suit. however plaintiff in the a fact, claim to held, disregarding in the insured’s peril Although judge the trial after added), defense,” Siegel cannot (emphasis id. to com- that Potomac Residence entitled in- suit, deciding whether the fairly be read as the Zeender pensation for its defense of in a declara- to counsel fees recovery sured is entitled the amount of disagreement about coverage in tory judgment action to establish slow painfully relief has been has meant that by the oppressive conduct of the plaintiff the absence has not reached the coming in and in that court discerned which the disposition, Po- insurer yet. the trial court’s Under case, rejected dispose of American Rule. In that we Siegel therefore does not case. Alyeska the issue before us.8 in position that the enumeration exceptions of three to that subsequent eases Stores, King Safeway Inc. relies on recognition precludes Rule other Servs., Inc., 451 v. Chamberlain Protective exceptions, no matter what the circumstances (D.C.1982), a case not cited A.2d Stores, Link, District of parties. Safeway supermarket may a be. In Columbia security guard employed by who was Cham adjudged contempt be in civil of a to allegedly a berlain assaulted customer. order, Superior judge the trial Court but against brought customer an action both expressly found that the disobedience was Chamberlain, Safeway asserting that represent- plaintiff, who was willful. they joint Safeway tortfeasors. filed a were by attorneys Neighborhood from the Le- ed cross-claim Chamberlain in herself, no cost to gal Program at Services primarily alleged that Chamberlain was lia of counsel fees in con- requested an award plaintiffs injury, that ble for the Cham contempt of the civil nection with the conduct Safeway duty berlain owed a of indemnifica Supreme Court had stated proceedings. The jury tion. The both defendants liable found equita- of its Alyeska that in the exercise plaintiff in Chamberlain’s and ruled authority, may “a court assess ble Safeway’s request favor on for indemnifica of a disobedience fees for willful however, judge, granted tion. The trial Safe party has losing ... or when the acted order way’s judgment motion for n.o.v. on the faith, wantonly, vexatiously, bad cross-claim, concluding that Chamberlain had 258-59, 95 oppressive reasons.” 421 U.S. at indemnify “implied obligation an ... Safe Link, (quoted at 1622 S.Ct. Safeway way.” sought Id. at 68. then 931). Seizing language, the District part recover its counsel fees as of Chamber willfulness, that, showing argued a absent obligation indemnity. The trial lain’s Alyeska precedents applying court, and this court’s invoking court denied relief and this Rule, precluded Id. at 68-73. Rule an award of the American affirmed. the American plaintiff fees to the Link. counsel Safeway think that Stores is distin- We guishable present case in decisive rejected the District’s conten- This court Chamberlain, primary respects. Although Alyeska was not tion. We noted tortfeasor, “implied obligation” to in- had case, Supreme contempt and that Court demnify Safeway, agreement between the question before us had not addressed the parties any duty two did not center on on the decided it. 650 Link and could not have part Safeway of Chamberlain to assure because the Dis- A.2d at 932. We held that counsel. would have retain On court, trict violated an order had contrary, Safeway hired Chamberlain to an award of counsel plaintiff was entitled to Safeway’s supermarket, maintain order prove that the spite failure to fees of her representa- provide Safeway legal not to with willfully, oppressively, or District had acted dispositive Safeway tion. Stores is not here Link, A.2d at 931-33. We in bad faith. appli- make because the considerations which contempt” exception incongruous recognized so a “civil cation of the American Rule thus context, present pp. Rule, unfair in the to the American and we declined 1231-1235, simply arise. supra, did not dispositive in which we had read as decisions Rule, entirely under applied the American supported by Link v. Dis position

Our circumstances, deny counsel Columbia, (D.C.1994), different 650 A.2d 929 trict of prevailing party. scope the of the to a case which also addressed that, contrary policy’s exclusion clause and to Given the sexual contends Potomac Residence conclusion, judge’s the Western World’s substantially trial of Ms. Prieto’s the sexual nature just oppressive as that of the conduct, conduct was insurer in supports alleged the trial the record Siegel. light of the discussion judge’s that the evidence was not determination B, supra, we not that issue Part II need address sufficiently support a.claim of bad extreme to request for in relation to Potomac Residence’s coverage. faith denial of declaratory judgment action. counsel fees for the

1237 upon a claim failure to state complaint for unlike that which problem here is not Our A of may granted. of division the court in Link.9 The denial relief confronted present context raises v. fees in the Carl Children’s counsel this court affirmed. (Carl I). (D.C.1995) previously been consid which have not issues 286 Hosp., 657 A.2d of stare by that, court. “[T]he ered this rule opinion as inter- The division was properly unless is never invoked law,10 decisis our earlier preted subsequent case precedent put the decision forward George Cochran in Adams v. W. decision passed applied to and judicial mind has been (D.C.1991), in which we held 28 597 A.2d upon precise question.” District Co employer discharge of to an it was unlawful for Club, A.2d 360 lumbia v. Sierra 670 statute, refusing to a employee for violate an McCloud, (D.C.1996) (quoting Murphy v. permissible exception to sole represented the (D.C.1994)); see also Umana A.2d doctrine,”11 and that “employment at-will Berlin, Chartered, 669 A.2d & Swidler liberty not at of this court was a division (D.C.1995). judicial cannot mind I, exception. Carl recognize any new passed on the issue fairly be said to have (Farrell, 288-89; id. at 294 at see also us. before J., concurring). dissenting colleague’s position is also Our II, however, court, sitting en In Carl very effectively foreclosed our recent deci- banc, reasoning. The rejected the division’s Hosp., A.2d 159 sion in Carl v. Children’s court held that the curiam) (Carl II). (D.C.1997) (en banc) (per exception” created in Adams “very narrow case, an “at-will” In that a nurse who was in a manner that makes not be read should Hospital employee claimed that Children’s any impossible recognize additional wrongfully discharged in retaliation had her policy exceptions to the at-will doc- public testifying of the Dis- before Council may recognition.... trine that warrant opposition proposed trict of Columbia hold in Adams could not and did not “We appearing as a legislation tort reform and for policy excep- only public that this was expert malprac- plaintiffs witness medical tion, simply not question was judge because that litigation. tice The trial dismissed misleading. are often Armour & 9.According dissenting colleague, other facts to our Link Wantock, recognized merely [65 132-33 "refined the definition of a 323 U.S. Co. Rule," (1944); exception 165, 168, therefore to the American 118] 89 L.Ed. S.Ct. authority Avenue, a of this "cannot be read as for division Hampshire New also Tenants of adopt any exception....” 'new' On the court to Rental Hous. N.W. v. District Columbia of description, contrary, we held in Link that the Comm’n, (D.C.1994). & n. 8 Alyeska post-Alyeskajurisprudence, and in our of Alyeska Supreme Court’s allusion in specific exceptions to the American Rule was a court order cannot disobedienceof "willful" exclusive, necessarily and could not and did not reasonably a be construed to resolve preclude recogniz- of this court from division Court, namely whether the before ing exception appropriate on an an additional authority equity of fol- remedial record: lowing court’s decree ex- a violation of that correct- As former Chief Robinson has occa- of counsel fees tends to the award observed, however, "Alyeska ly was not a con- noncompliance. contemnor's sioned case, tempt no need in that action so there was light Alyeska of the facts of the is read "in If finding Court to discuss whether a for the discussion,” Armour & [there] case under prerequisite award of willfulness is a 168], ... supra, [65 at 133 S.Ct. 323 U.S. contempt proceeding.” a civil fees in application thereof to this or lack then its Yeldell, Motley F.Supp. [v. readily apparent. appeal becomes O'Donnell, accord, (D.D.C.1987)]; Perry [v. added). Link, (emphasis A.2d at 932 (9th Cir.1985)]. The Su- preme prudently Court has itself issued See, Washington, Gray e.g., Bank Citizens following warning: vacated, (D.C.) id. at timely again counsel that It is to remind rehearing en opinion denial of reinstated on opinions are to be read in the words of our banc, (D.C.1992)(enbanc). 609 A.2d 1143 light the facts of the case under discus- keep opinions within reasonable sion. To provides the absence of that in 11. This doctrine every writing precludes into them lim- bounds provision, statutory proscription or contractual suggested might be itation or variation which employee may discharge employer an at-will circumstances cases not before for no reason. transposed reason or expressions Court. General simply that there III. presented.” Adams said very exception narrow to the at-will is “a

doctrine,” “just not one and one” such OTHER ISSUES exception. nothing in the Adams There is cross-appealed has from Western World opinion that bars this court—either Judge Wynn’s awarding Potomac Resi- order three-judge panel court en banc— or the $237,306.37 for its costs and counsel dence public policy recognizing some other litigation. Zeender fees in the defense of the warrant exception when circumstances that the award Potomac Residence contends recognition. point On this such judge erred fully justified, but that was agrees. court of the en bane prejudgment denying Potomac Residence II, (citations omitted); at 160 Carl each on that amount. We consider interest J., (Terry, concurring); see also id. at 161 id. in turn. of these issues (Ferren, J., concurring); id. at 174 at 166 (Schwelb, J., (Mack, concurring); id. at 186 costs and counsel A. The award of fees. J., concurring). dissenting colleague’s approach this Our awarding February In 1995 order her essentially case is identical to that taken fees and costs for the Potomac Residence its I. as the the division Carl Just division suit, judge the trial defense of the Zeender represented that Adams that case asserted persuasive “no evi- stated that she found doctrine,” exception to the “at-will so the sole not reason- costs are dence that Plaintiffs excep- Judge King says now that the three however, not, judge elaborate able.” The did the American Rule enumerated tions to con- upon World this conclusion. Western Alyeska permissible constitute the sole ex- is entitled to Residence cedes that Potomac ceptions Judge King to that thus con- Rule. costs, counsel fees and recover reasonable Supreme insist that decisions tinues to the award is excessive and but contends that by this court should be construed Court and granted judge that the trial should have simply deciding “[a] [that] discovery request for World’s Western II, presented.” supra, 702 A.2d at Carl hearing to determine whether for II, squarely Carl the en banc prayed appropriate. amount for was emphatically rejected proposition. that responds that Western Potomac Residence

[*] ^{[*] [*] [*]} World’s are insufficiently specific, objections come too late, that they in alleged reiterate what should be obvious to the failure to seek additional We World’s pre is a narrow one. The Residence first reader: our decision formation when Potomac in the Dis- a waiver of American Rule is alive and well sented its demand constituted ' Ass’n simply apply discovery. National right trict of Columbia. It does See case, where, Secretary De agreement be- Concerned Veterans U.S.App. 675 F.2d 1319 fense, tween the insurer and its insured discloses D.C. (1982).12 paid premiums to the latter has its retain or ensure that it will not have to counsel, judge has broad discretion breach The trial

compensate and the insurer’s amount determining whether in what expectations. do not frustrates those “We Bagley v. awarded. opinion judges trial counsel fees should be purport in this to instruct Historic Preservation substantially different Foundation how to rule on facts (D.C.1994); Mims, Georgetown, 647 A.2d Mims v. from those here.” M., (D.C.1993). Jerry see also District Columbia 325 n. 12 precise and attack than a concurring opinion nature of a blunderbuss 12. See also Tamm, U.S.App. [opponent] challenge, D.C. at has failed well-founded (“[I]t party enough opposing burden, and, assuming plaintiff 1338: is not carry are simply burden, ... that the hours claimed to state requested the fees [its] has met threshold high.... too excessive and the rates submitted awarded.”) by plaintiff should be objections] appear in the to be more [If the

1239 (D.C.1990).13 pre 1270, whether to award The decision 1280-81 We 580 A.2d to the discre judgment interest is confided judge’s to the exercise of discretion defer trenches, trial court. District Columbia and tion of the because he or she is Assocs., Inc., 306, 310 understanding of superior a v. Pierce therefore has (D.C.1987). stated, in cir have albeit essentially factual We litigation and of the from those appropriate significantly award. cumstances different relevant to an issues here, prejudgment interest presented Hampton Tenants Ass’n v. District Courts Comm’n, Blake is not favored. Constr. Rental Hous. contract eases Columbia 569, Co., Inc., 1113, (D.C.1991); A.2d Hensley Coakley see also v. Co. v. C.J. (D.C.1981) Eckerhart, 1933, 424, 487, (citing Flanaghan v. Charles 461 U.S. S.Ct. (1983). 307, 308, 1941, although Tompkins U.S.App. D.C. 76 L.Ed.2d 40 But H. (1950) curiam)).14 attorney’s (per ‘“request for fees should not re 182 F.2d major litigation’ in a second ... [t]he sult must be based on discretion Judicial reasonably spe findings trial court’s must be judge’s legal principles, and the de correct Bagley, supra, 647 at 1115 cific.” A.2d a firm fac termination must be drawn from 437, 103 Hensley, supra, at (quoting 461 U.S. J.D.C., tual foundation. In re 1941). S.Ct. at omitted). (D.C.1991) (citations Because the case, present parties are denying not state her reasons for judge did as to the reasonableness of odds claim, we do not know Potomac Residence’s by requested .the fees counsel for Potomac ruling. led to her Under what considerations Residence but also as to the timeliness and circumstances, light of Potomac sufficiency objections. of Western World’s for further arguments, a remand Residence’s Although appears discovery was re appropriate. consideration is denied, quested World and Western some considerations rele- We summarize record the reasons for that does disclose calculus. “prejudgment interest” vant controversy quite denial. The amount in is was filed on December The Zeender suit substantial, appropriate and we think it ago. March years almost six On remand the case to the trial court for find years ago, the trial some two and a half ings of fact and conclusions of law as to judge Poto- ordered Western World issues, substantive, procedural both quarter than a of a mac Residence more parties which have been raised re of that suit. million dollars for the defense however, emphasize, garding the award. We Residence is The amount to which Potomac quasi-lawsuit that a new full-blown over the however, dispute, entitled has been amount to which Potomac Residence is enti yet paid. to be Potomac Residence has justice. tled would not be the interests of enjoyed Potomac has what World of in- calls “the double benefits Residence Prejudgment B. interest. paid by premiums insurance vesting both the explanation judge The trial denied without money it owes and the Residence] [Potomac prejudg- request Potomac Residence’s for costs.” for its insured’s defense ment interest on the award it received § 15- provisions of D.C.Code suit. Potomac Under the the defense of the Zeender (1995), empowered Superior Court Residence contends that this was error. however, asserts, we need not decide also contends that be dence 13. Potomac Residence seeking applies an award of counsel fees because its cause it whether a different standard contract, its burden is lower than it litigation based on were costs in the Zeender defense statutory fee case. "It is most would be in "clearly reasonable.” important between claims to note distinction pri attorney’s brought fees in the context of Blake, however, an award of we sustained 14. In damages those made under a vate actions and "necessary fully com- prejudgment interest attorney’s authorizing recovery of statute plaintiff.” 431 A.2d at 580. Blake pensate the parties government prevailing in suits Flanaghan be- involved controversies both Corp., rights N.V. civil cases." Eureka Inv. or in tween contractors and subcontractors. U.S.App. Chicago D.C. Ins. Title (1984). Potomac Resi- that a recognized defendant prejudgment interest. This court We have to award permitted if is to unjustly is enriched he interpreted that statute to authorize this has funds which he necessary fully “to benefit from the income from relief if such an award is wrong Assocs., has plaintiff which he compensate plaintiff.” owes to the and the Pierce 310; Wines, should fully the debtor 527 A.2d at House Inc. v. withheld. “Where of (D.C.1986). so, a Sumter, 492, paid not do have what he owed but did 510 A.2d deny prejudgment of interest would plaintiff deprived has of the denial Where been withheld, allow compensation full to the creditor while money prejudgment interest use of advantage ing party to take complete compensa of the recalcitrant is often an element the richer for wrong of its own and become Riggs tion. Nat'l Bank v. District Colum of I, (D.C.1990) at 1253. The bia, 1229, Riggs supra, 581 A.2d (Riggs it.” 581 A.2d I). say to that it is be heard defendant “cannot enjoy [the that it should equitable fair and law, prejudgment At common interest was long, money] so and plaintiffs of use penalty punish as a to used to the viewed be Phillips Petroleum Co. not a cent for it.” wrongdoing delinquent of a Pierce debtor. (5th Cir.), Adams, cert. Assocs., view, 527 A.2d at 310. “Out of this denied, 96 S.Ct. 423 U.S. dichotomy liq- unliquidated between (1975). L.Ed.2d 259 deemed [I]t uidated amounts arose.... penalize unfair one who failed tender prejudgment interest An award of payment he not know the amount when could goals: “to has three the insurance context of the debt.” Id. at 310-11. plain compensation fair provide full and whether the Elec. Power ment interest is an element intended to redress.’ pensation ment is pensation for the use ‘from Bank v. Carl G. Rosinski 527 A.2d at his dispositive, compensated for the loss.” Pierce terest of the use of the 1979). penalty; terest debt). compensate ognized one ^[6] unliquidated money. significant Our (D.C.1991) (Riggs the time the may is not awarded Where Under this entered, thereby achieving full com rather, for the more recent decisions have rec District be 311; plaintiff prejudgment money element of awarded on an plaintiff character of the debt is not “the its money loss of use of such plaintiff injury claim accrues until approach, ” primary purpose withheld and important question also, has been Columbia v. Potomac II) for the loss of use of Riggs withheld, those has been damages. order to (prejudgment in interest e.g., Riggs Nat’l 430, 441 complete I, are damages unliquidated deprived of supra, 581 liquidated should be “prejudg deprived Assocs., is often exact a Id. In money judg (D.C. is to com vest) Mut. Ins. Co. v. pending in this case. because legal fees to ums that it has served award tiffs, es same number entitled disincentive courage argues that dence, out-of-pocket, time, to its settlement, both than when rightfully (1) by an award of the court’s failure of the use to an legal Potomac Residence Western World delay by encourage deprives (D.Md.1996). each of these fees.15 We have award of dollars will King because as money According to Potomac received; prompt payment, since belongs to Lafarge Corp., 910 pro of and income from defendants.” it, therefore should settlements, takes the for a substantial bono it owes and controversy began in prejudgment interest prejudgment retains Potomac Residence purposes would be long as the case is to make such counsel, it is not it; has not buy less held, however, (3) (2) position that (and Nationwide provides a discourag paid any F.Supp. interest in, say, not be can to dis money premi period Resi in determining of fees to be Virginia the amount (quoting v. Unit [i]n West States, 2, 107 awarded, legally relevant it is not 310-11 n. S.Ct. ed 479 U.S. (1987)). by ... employed ... plaintiffs’ counsel are 706 n. 93 L.Ed.2d argument particular in its brief. World has not made this 15. Western non-profit public IV. privately inter- funded It est law firm. the interest CONCLUSION public that such law firms awarded reasons, judgment is foregoing For the computed reasonable fees to be reversed, is remanded for fur- and the case in the manner when its counsel traditional opinion. proceedings ther consistent with perform entitling legal services otherwise attorneys’ to award of them the fees. So ordered.

Link, supra, (quoting 650 at 984 Blum KING, concurring part Judge, in Associate Stenson, 886, 895, 104 1541, v. 465 U.S. S.Ct part: in dissenting (1984)). 1547, 79 891 on to L.Ed.2d We went Although legal principles, few there are explain that nature, of other than those a constitutional legal provided free services are [w]hen stone, are that be said to be cast there can may there be no direct to the barrier jurisdiction which are two rules of law this door, if no courtroom but fees are award- so and so time-honored fundamental ed, placed of on the burden the costs is they be have come to considered bedrock services, organization providing the and it One, as the American principles. known correspondingly may bring to such decline Rule, “every party a case shoul- holds that suits and to concentrate its limited decide fees, attorneys’ and recovers ders its own elsewhere.... resources litigants only presence of from other authority, arrange- statutory a contractual Link, at v. R (quoting 650 A.2d 934 Hairston ment, narrowly-defined or certain common (7th 1090, Apartments, & 1092 R exceptions.”1 principle That was first law Cir.1975)). reasoning think that the We by 200 Supreme set Court over forth respect applies with Link counsel fees determine, and, I years ago2 so can far plaintiffs right equal with force to the fifty years explicitly stated some was first prejudgment recover interest on those fees. ago jurisdiction.3 It has by a court this repeatedly reaffirmed in cases decided been * * * * other by court since then.4 The “bed- this Ryan, summary, principle, ad- rock” known as M.A.P. v. the trial court did not arguments vintage, of holds “that dress Potomac Residence’s for an which is more recent remand, prior prejudgment no of this court will overrule a interest. On division award court ... and such result judge should reconsider her of decision of this exercise light accomplished court en discretion in of the authorities can this discussed principle has never been called opinion. this Part III. B of our She banc.”5 This articulate, orally has and followed writing or on into been cited should record, decision, since it was times this court the basis for her either countless Remarkably, allowing an respect appropriateness of first laid down. way, with declaratory attorneys’ in this prejudgment an award of interest Potomac award action, though there is no judgment even Residence.16 Society, up 421 U.S. 95 S.Ct. 16. do not add because Wilderness The numbers cited all (1975) to rec- 141 where it declined fee awards on one or L.Ed.2d some states have allowed exception an rejected ognize which would allow grounds such an award more but have a liti- ground grounds. fees in actions where or award of on some other general. gant "private” attorney as a acted 1. T. Carr Co. v. United Tech. Comm. Oliver (D.C.1992) (quoting Dalo v. O’Donnell, (D.C. Murphy A.2d 340 3. v. See Kivitz, (D.C.1991)). 1948). Wiseman, 2. 3 Dali. L.Ed. Arcambel See, Leasing e.g., Co. v. Allstate Trilon Plaza (1796); Brewing, Corp. v. see Fleischmann Maier (D.C.1979) cited and cases Corp., 399 A.2d 1406-07, 714, 717-18, U.S. 87 S.Ct. therein. (1967); Supreme Court’s most L.Ed.2d 475 comprehensive Rule discussion the American (D.C.1971). Ryan, 285 A.2d Alyeska Pipeline Serv. Co. v. M.A.P. be found in can faith, statute, provision, recognized wantonly, vexatiously, op- contractual “bad or for it, reasons”; exception major- allowing pressive preserved common law a fund Id., ity supra managed has to violate both these for the benefit of note others. reason, 257-59, venerable of law. For I at 1621-23. In rules U.S. 95 S.Ct. principal holding generally applica- dissent from the courts federal no other exception court. recognized.7 ble has ever been exception today, Until no other the Ameri- defends the it has course approved by can Rule has ever been First, general grounds. taken on two court.8 claims, reasons, rule of various that the Ryan, M.A.P. does not bar division I. recognizing any excep

this court from new appropri tion to the Rule American it thinks principal basis for its conclusion that Second, ate. majority persuaded the is to Ryan prevent M.A.P. v. not it does part the result it in has reached no small recognizing exception a new to the American reasoning” because of the “force of in the[ ] the majority’s Rule is that observation there Maryland adopting exception cases the same holding is to contrary. no authoritative the 1232, to the American Rule.6Ante at note 3.1 short, argument goes, In so the because this disagree majority the with on the first expressly court has never ruled that attor- ground for the reasons On discussed below. neys’ in fees are not available these circum- second, majority appears the the to be more stances, a division of this court is free to favorably disposed reasoning to in the the may that such decide fees be awarded. Maryland highest than that cases state’s directly I concede that have never While we court recently questioned which has the un may held that fees not be awarded on the derlying legal support theories in advanced here, presented facts American with the Rule of extension the American Rule to generally exceptions three recognized is of attorneys’ include an in circum award fees jurisprudence so embedded into our civil that stances similar to those here. it has become the authoritative statement of above, As gen- short, noted the is In governing legal principle. American Rule the it is erally say requiring party stated as each to T. fair to that the Oliver Carr definition Rule, its own attorneys’ fees unless a or of American by statute the virtue of its ancient provision provides contractual origins repeated by otherwise. and its reaffirmation the court, exceptions Three by Supreme that rule were noted Court so and this is “inextri- Supreme Alyeska the in cably warp Court its landmark woven into the and woof of the [court],” attorneys’ may judicial decision: fees assessed fabric of be this that it has “for the willful disobedience of a court or- the rule of law become established on the der”; opposing party attorneys’ when in of question has acted the award of fees. conduct, plaintiff Maryland 6. The lead case is Cohen v. American tortious is there- dant’s Co., 334, Home Assurance 255 Md. fore entitled to recover the losses incurred in the (1969). attorneys’ action earlier which includes fees ex- pended pursuing defending in that or action. very Although applicability, of limited the Su- Williams, See First Nat’l Bank Hutchinson v. of preme permitted Court has also a fee award (1901) 63 P. Kan. 745-46 cited in admiralty under certain circumstances some supra, Murphy, 63 A.2d at n. 2. The situation Atkinson, Vaughan cases. See 369 U.S. is to what occurred here: because Poto- similar (1962). 82 S.Ct. 8 L.Ed.2d 88 prevailed declaratory judg- mac Residence supra Murphy, note we observed that World, against ment action the latter is jurisdictions recovery attorneys' some allow attorneys' responsible for the fees incurred litigation theory fees incurred an earlier a Residence Potomac in the earlier case in which it "wrongful-involvement-in-litigation." See against against defended made it a claim Kraisel, (D.C.1983). Auxier v. party. third Allowance of fees these circum- ground We a fee first allowed award on that Rule, exception stances however, not an American Fidelity Brem v. United A.2d States & Guar. applies because the American Rule (D.C.1965). Fees are recoverable case, past fee awards in the current not some plaintiff in such because the was re- instances litigation. quired participate litigation in some with a party third earlier the defen- at some time due to Scale, however, whether the contuma Washington H Haul v. A & Trash Toledo Garcias (D.C.1990) not, willful, was, or cious conduct ing 548 n. J., dissenting) finding was neces (Schwelb, concurring of willfulness whether excep Terzich, sary of fees under this In re Petition for an award (quoting of Marko (W.D.Pa.1957), Supreme has not aff'd, Although the Court F.Supp. 256 tion. (3d Cir.1958)). so, point, virtually all definitively spoken on this that is F.2d 197 Because appeal that have Ryan only of the federal courts because under M.AP. that, concluded empowered set have banc court is to overturn addressed en exception law, may adopt invoke this majority order to tled Rule, need not exception previous willfulness to the American Rule American shown, purpose of civil ly jurisdiction. largely because the recognized in this designed contempt is remedial majority support for its finds party for its loss. compensate opposing view, Ryan M.A.P. v. is not a bar to its injured the loss suffered Because Rule, in Link v. extension of the American dependent upon the motive of party is not (D.C. Columbia, District 650 A.2d 929 contemnor, attorneys’ may award court 1994), upheld the award of where the court whether the disobedience of fees party, be in found to Perry v. O’Don is willful not. See order contempt, for civil nonwillful disobedience Cir.1985).9 (9th nell, 702, 705 See a court order. reasons Co., Paper v. 336 also McComb Jacksonville exceptions of the to the because one three 500, 187, 193, 497, 69 93 L.Ed. 599 U.S. S.Ct. only Rule for for American allows fee awards (1949) (“The power in of court’s measure disobedience, allow “willful” the Link court’s contempt proceedings is determined civil ance of fees wow disobedience con willful relief’). full requirement of remedial exception stitutes a new division that result for court in Link reached The deciding recognize despite Link was free Therefore, essentially the same reasons. imposed by Ryan. the constraints M.A.P. v. it is that that can be said of Link most reasoning That is Link flawed because did recognized of one of the refined the definition exception. a new not establish certainly It exceptions to the American Rule. above, Alyeska As I in said listed exception a new and there did establish generally recognized exceptions the three authority as for a divi cannot be read fore Rule, “willful” including the American dis any excep adopt “new” sion of this court to contempt in obedience of a court a civil order despite M.A.P. v. recognize tion it wishes to Alyes- making action. In that statement the Ryan. quoted passage from ka court Fleisch mann, 717-18, majority support in our supra, 386 U.S. at 87 The also finds S.Ct. in v. Children’s in turn en banc decision Carl 1406-07. Fleischmann cited to Tole recent curiam) (D.C.1997) (per Computing Hosp., 261 702 A.2d 159 do Scale Co. v. Scale (Carl II). 399, 427-28, 458, 466, anything, If was decided 43 67 L.Ed. what U.S. S.Ct. II consistent (1923), court in Carl 719 authorized the en banc where fees were recognition my of further involving matter held to with view that conduct Court 427, only can be “contempt exceptions to the American Rule of the court.” Id. at 43 be court. accomplished the en banc at 466. There was no discussion S.Ct. AFL-CIO, Union, U.S.App. 322 D.C. 9. Four other federal circuits have reached the Workers Int’l 14, 1007, 301, 14 (1997). Hosp., same result. F.3d 1017 n. See Cook v. Found. 311 n. 103 Ochsner 270, (5th Cir.1977); Mfg. question open. 559 F.2d 272 TWM Co. has left the See The Third Circuit 1261, (6th 722 F.2d 1273 Cir. Corp., Dura Pa. v. Western Bhd. Teamsters International of 1983); Commodity Trading Futures Comm'n v. 76, (3rd Ass’n, n. 660 F.2d 84 13 Motor Carriers (7th Cir.1981); Inc., Premex, F.2d Cir.1981). fees in a Second Circuit allowed The Family Steak Houses v. Western Siz Sizzler willful, contempt where the was see Vuitton case (11th Inc., SteakHouse, F.2d zlin Handbags, Fils S.A. v. Carousel et Cir.1986). The District of Columbia Circuit has Cir.1979), (2nd addressed the but has not 130-31 point, formally has not ruled on the but indicated precise question allowed ab whether fees are it cases. See that is in accord with above showing of willfulness. sent Lion, v. United Food & Commercial Food Inc. Carl, J., J., majority, relying upon joined by Schwelb, the division (Wagner, and Sulli- cases, J., four only van, other recent held that the en peti- dissenting denying from order exceptions banc court could authorize rehearing banc improvidently tion en as employment-at-will beyond doctrine the one granted: majority panel “As the rec- recognized in v. George Adams W. Cochran ognized, only banc the en court can decide (D.C.1991). 597 A.2d Carl v. See raises”). appellant the issue Hosp., Children’s 657 A.2d n. 6 applies same As principle The here. dis- (D.C.1995) (Carl I). per opinion curiam above, said, many have occa- cussed we court, banc supported by the en which was sions, provides that the Rule that American eight the ten judges considering the mat- “every party attorney ... shoulders its own ter, acknowledged that the ICarl fees, only litigants recovers other holding was correct so when it observed presence statutory authority, a con- that: narrowly arrangement tractual or other de- initially appeal division heard this ” common T. exceptions.... fined See Oliver [ruling rejecting affirmed the trial court’s Carr, supra, very at 883. A.2d At exception Carl’s contention that another minimum, principle is as well settled the at-will doctrine should be recognized,] Adams-Gray upon expansions limitation by precedent because was bound to do at-will doctrine. But before the en Hosp., so. Carl Children’s II, banc court ruled otherwise Carl no (D.C.1995), citing Gray v. Citizens empowered division to authorize new Bank, (D.C.) (“a divi- employees. causes of action for fired There- expand sion of [this] court not free to fore, it necessarily follows that the en exception”), the Adams vacated id. at exceptions court can banc authorize new opinion rehearing reinstated on denial of Rule, declare, the American we did banc, (D.C.1992); en 609 A.2d 1143 II, exceptions may recog- Carl new (D.C. Ryan, M.A.P. of the court stan- applying nized divisions 1971). prescribed by dards the en court which banc II, supra, (emphasis Carl 702 A.2d at 159-60 govern of would the exercise this new author- added).10 per majority curiam on went ity.12 say to it agrees” that “now that additional merits, Finally, on the we should follow “public policy” exceptions may recognized be Stores, Safeway Inc. v. Protec- Chamberlain by a division of the court. It expressly then Serv., Inc., (D.C.1982), tive A.2d 66 the Gray holding overruled that it court’s which, approval, it the cases cites with al- expand excep- was “not free to the Adams II, 159; though precisely point, present facts tion.”11 supra, Carl 702 A.2d at sufficiently supra, Thus, which are close to circum- Gray, at the divi- because stances here to serve as an authoritative repeatedly sions of the court had said there for declining recognize any basis to new ex- authority, was no such action banc the en necessary ception court was to the American Rule. In those cases order to authorize a recognize the any division court to new the courts reaffirmed “well-established” Bank, exceptions. Gray an is to See also rule that indemnitee not entitled an Citizens (D.C.1992)(en banc) of n. 3 award fees incurred dissenters, ("[T]he judges) recognition joined 10. The two one of this whom was three other judge, majority's did not conclusion public policy exception doc- of to the at-will concluding that the division was correct in solidly regula- trine must be on a statute or based only the en banc court authorize could a division particular public policy tion that reflects the to Rather, recognize exceptions. to new dissen- (if applied, appropriate) on a constitutional ters were of the view that the en banc provision concretely applicable to the defen- authority. extend should not such conduct.”); (Stead- at dant’s man, id. 197 n. J., dissenting opinion, joined by judge) majority, consisting judges, 11. A different of six Terry’s concurring plurali- (acquiescing prescribed apply a division must standards ty opinion). determining public policy exceptions. new See (D.C. Hosp., 702 A.2d Carl v. Children’s J., 1997) opinion (Terry, concurring plurality supra. note 12.See of a company for breach against its insurance prosecuting a claim to course of successful a on failure right indemnification. Id. insurance contract based to health establish Construction, citing Ranger v. Prince pay promised Co. health benefits. Collier to Bd., Assoc., County Sch. 327 Md. Practice William MD-Individual (4th Cir.1979) (1992). (“attorneys’ Acknowledging for es- 607 A.2d ... tablishing right indemnity seeking of are ... a decla- the cause of an insured recoverable”).13 majority, ... not Unlike the to health ben- establishing entitlement ration meaningful be- attempting I can discern no distinction deserving an insured efits here, where Poto- tween circumstances liability coverage, the Col- promised to obtain attorneys’ fees mac Residence was denied an rule as the Cohen lier court described compel Western incurred in this action to theory legal remarking that “the “anomaly,” lawsuit, circum- World to defend a and the Id. supporting this rule remains unrefined.” Stores, supra, and the Safeway stances Co. v. Board (quoting Continental Cas. of cited, eases where the indemnitee was other (1985)). Educ., 536, 547 Md. in its claim denied fees costs incurred exception beyond to extend the It declined right establishing the indemnitor Cohen, to do so recognized by because of indemnification. anomaly,” “only compound the observ- would ing: II. standpoint applica- of a strict From the I think the is without Not do rule, is no there tion of American authority recognize to exception a new plaintiffs why logical reason the successful Rule, I American am also the view the liability insurance action on majority’s reliance on caselaw other defend, promise breach of jurisdictions misplaced for several reasons. defense, counsel include cost should First, places on the weight far too much prosecuting the breach of contract fees in Maryland exception to recognizing cases action, plaintiffs’ actions when successful the American Rule under these circum contracts, insurance for other breaches of Cohen, supra note The ma stances. See contracts, do not or for breaches other correctly always jority observes that we have fees. The ordinarily include those counsel respectful given consideration decisions Maryland awarding to rule the successful Maryland of Appeals Court for both his judg- declaratory insured counsel fees torical and other reasons. Ante at note liability assumpsit actions with ment or 3; States, 1245, 1252 Ford United de- promise insurers breach (D.C.1992). majority goes n. 16 But the is an pay the cost of defense fend or that, beyond electing to follow the lead exception rule. To extend to the American Maryland “primarily on this cases issue be insurers, exception to health who that reasoning.” cause of the force of their Ante by failure to their contracts breach 1232, Ap of Maryland at note 3. The Court benefits, only compound will the covered however, expressed fairly peals, has what can anomaly. misgivings be about the reason described Collier, supra, at 544. This less ing holding underlying the Cohen in a recent exception of this rousing endorsement than recognize in which it still case declined it commend as the American Rule does not exception to Rule another the American adopt.14 brought we should an insured a successful action one where Cir.1981); Dillingham Shipyard upon In- cases from Safeway v. Associated relied Stores Cir.1981). (9th Co., F.2d Vallejos v. other federal circuits. See two C.E. sulation Cir.1978); (10th Co., 583 F.2d Glass upon of majority a decision a also relies 14. The Smith, Pierce, Bagby Lynch, & v. Merrill Fenner appeals interpreting law. Illinois federal court of Cir.1974). (8th Inc., 198 n. 9 F.2d 806 F.2d Penney Auto Green v. J.C. Ins. See that have addressed other four federal circuits (7th Cir.1986). note 4. That at Fabrics, See, Ante e.g., Peter this issue are in accord. following misplaced reason. (2nd is reliance Hermes, 765 F.2d Inc. S.S. upon principally relied v. U.S. Cir.1985); Trovillion Green Eurounity, Thyssen, Inc. v. S/S Ill.App.3d Ill. (2d Cir.1994); Fidelity Guar. Signal & Oil & Gas F.3d Dist.1985), (5th (Ill.App. 5th W-701, Dec. 474 N.E.2d 1178-79 Barge Co. Second, it significance is of some that so statutory provisions a done based on majority interpretations appli- of language substantial those courts that contract not (seven juris- Only minority here.16 a attorneys’ have been asked to award fees in cable dictions) circumstances, adopted exception exception these as an to the have the Cohen And, Rule, to the American Rule. unlike this American have declined to so. A deci- do three-judge panel, sion a case in summary of the each authorities the various jurisdictions seven jurisdictions addressing those was heard this is issue set all, all, highest judges or nearly with of appendix opinion. forth in the to this As can observed, participating.17 Although the court the state thirty-five states have consid- dispos- iii jurisdictions of the law other is not issue in ered the one fashion or another and on itive of how should de- we twenty-two have fee allowed awards issue, this cide we nonetheless should not presented Ap- circumstances in this ease. ignore practice predominates else- pendix Fat Those G. numbers are mis- contrary majori- where which is to what the however, leading, because most of the courts ty today. has decided here that have so allowed fee awards did grounds applicable example, here. For Finally, regulation companies of insurance twelve states have allowed fee based awards relationship their public with the is a upon interpretation specific either an of a standing. of legislative long function This addressing question, statute govern- this jurisdiction exception insignif- is no and a not statute, ing declaratory judgment or a court portion icant of the District of Columbia Cl, DI, Appendix rule. at and El. More- Code devoted to insurance matters. See over, courts in seven states have allowed (1997 §§ D.C.Code 35-1101 to 35-4724 interpretation fee awards based on their of my In Repl.). view of the rule extension language, ground the insurance contract allowing the area award upon seriously relied legislature better left to the which has exer- pressed But, Appendix here. at Bl. those power cised to allow the of attor- award expressly ques- courts that have decided the neys’ fees on a in recent number occasions tion of whether fees should be years other areas the law.18 exception awarded as an American I regard, support find the rationale of the Rule, done, Maryland has more two- Alyeska than Supreme Court in it where observed (sixteen15 rejected thirds that course out of although provided Congress has for fee Al, twenty-three). Appendix circumstances, 2 and 3. specified under awards those Thus, although majority of the states allow “can in actions no sense be as a construed circumstances, they grant jettison fee awards these of authority Judiciary have appellate appellate a decision of an intermediate Illinois 15. Because Ohio decided courts have acknowledged ways, court. Green court the issue both could be that sixteen said twenty-four appellate resolving appellate half of courts in two the state’s states did rejected issue not award fees. had districts fee awards in these circum stances, however, Trovillion, it chose to follow appellate permitting the Illinois case fee judge’s 16. The articulation should also address awards, by question prejudgment was decided an intermediate on remand the whether Green, appellate appropriate court fee in still another district. interest is on the counsel to be Trovillion, however, supra, awarded to Potomac Residence in connection 806 F.2d at was declaratory judgment the with action. recently expressly appellate overruled the Realty court that decided it. See Bonnie Owen v. Co., Ill.App.3d Co., Ins. Cincinnati 219 Ill. 17. Cohen v. American Home Assurance 294, 300, (Ill.App. judges Dec. 670 N.E.2d 258 A.2d at five of seven of the court Therefore, Dist.1996). participated. judge participate 5th because hold did Green's One not Underwriters, ing entirely upon v. & based Brown State Auto. Cas. case that was itself (Minn. 1980). overruled, N.W.2d 822 precedential later its value is substan tially destroyed. can undercut if not The same the be said of most recent federal cited l-2553(a)(l)(e) (1997 decision e.g., § 18. See D.C.Code which, Green, by majority predated (Human Act); the like Bon § Repl.) Rights D.C.Code 1- Cycle 1527(c) (1997 (Freedom Savoy nie See Owen. National Inc. v. Reins. Repl.) of Information Ltd., (7th Cir.1991). (District Act); 28-3905(k)(l)(B) § Co. 938 F.2d 61 Ante at D.C.Code Act). note Protection Columbia Consumer Procedures expenses, out-of-pocket and whether non-statutory al- of these rule the traditional prejudgment to party to not the insured is entitled prevailing and lowances also leave courts on that amount. I would attorney fees whenever the interest award court, partic- in the public by a the trial for determination the furthered to deem instance, Potomac question whether important enough ular warrant first statute prejudgment at is to receive Id. 421 U.S. 95 S.Ct. Residence entitled award.” reason, attorneys’ fees and costs For the same we should interest on the 1624-25. paid. here step yet take the takes recognize exception a new to the American otherwise, majority holds Rule. Because the APPENDIX holding.19

I from that dissent highest other than *case decided court state III. Cohen-Type Exception. A. respect prejudg-

With interest, portion undisputed it is that a ment TOTAL) (7Yes 1.. damage represents the out-of- award Co. v. Southern Equity Arkansas: Mut. Ins. insured, expenses far pocket while the Co., 41], Ark. Ice S.W.2d [282 larger represents attorneys’ fees balance (Ark.1960). counsel. expenses pro due to bono Family v. Mut. Ins. Farm Maine: Gibson shows, far as the record Potomac Resi- So (Me.1996). Co., 673 A.2d 1350 counsel; paid dence has never these fees to Maryland: v. American Home Assur therefore, Cohen Potomac Residence not out-of- Co., 334] Md. [255 ance relating to fees. pocket for sum those (Md.1969). however, court, findings The trial made no separate ap- concerning portions, & Cas. Minnesota: Brown v. State Auto. peared (Minn. treat two distinct sums one. Underwriters, 293 N.W.2d deny- the court state its Nor did rationale 1980). ing request pre- Residence’s Potomac v. Falls Ins. Co. New York: $Glen$ Glens judgment interest. N.Y.2d [34 United Fire Ins. States 315 N.E.2d 773] 358 N.Y.S.2d any authority I am While unaware of (N.Y.1974) (fee award insured/defen- prejudgment which would allow for interest dant). costs that on award yet may, may paid, McGreevy Oregon have not been there Ins. Washington: Mut. not, justification pre- support sufficient 904 P.2d 731 26] Wash.2d [128 banc). (Wash.1995) (en judgment interest an award owed to ie., insured, nonbreaching party, for con- & Co. Virginia: Aetna Cos. Sur. West sequential damages stemming from breach Pitrolo, 342 S.E.2d 190] [176 W.Va. (1975 § of contract. See D.C.Code 15-109 (W.Va.1986); Hayseeds, Inc. v. Repl.). finding made Because there was no Cas., 323] & W.Va. [177 State Farm Fire concerning trial court the amounts (W.Va.1986). 352 S.E.2d pro to the insured and bono counsel owed TOTAL) (16 2. No separately, there no basis set and because Ins. Farm Mut. Auto. Co. Alabama: State denying prejudgment in the record for forth (Ala. Vails, 177 So.2d [278 266] Ala. portion of the on the interest to the insured 1965). to the insured as award that is attributable Borad, [27 v. Cal.2d California: O’Morrow out-of-pocket expenses, upon remand actual (Cal.1946); but see P.2d 483 amount 167 794] the actual the court should determine judge's determination supports trial majority record agree with the case I do findings fact and on which be remanded for was insufficient evidence should that there respect grounds to the reason- conclusions of law with of bad award on base an fee underlying pro- of the fee award in the ableness faith. ceeding. agree that the I also with the 1248 Assoc., Gonzales,

*Knatt v. *Lujan State Auto. v. New [84 Mexico: N.M. California Cal.App.3d Cal.Rptr. cert. [123 176 420 (N.M.Ct.App.), 115] 501 P.2d 673 229] denied, (Cal.Ct.App.1981) (according to [84 LEXIS N.M. 501 P.2d 663 219] (N.M.1972). opinion was withdrawn court or der). Malady, First Nat’l Bank v. Oregon: [242 Co., Florida: *Snider v. Ins. Draper Continental (Or.1966); 519 353] Or. 408 P.2d 724 Mullennex, 12 (Fla.Dist.Ct.App.1987). v. So.2d Or. 519 [225 267] 357 P.2d (Or.1960). Georgia: Maryland Sammons, Cas. Co. v. Co., Ga.App. 11 Hegler v. (Ga.[App] [63 S.E.2d 89 Ins. 323] South Carolina: [270 Gulf 1940) (fees (S.C.1978) (fees not available absent bad S.C. 243 443 548] S.E.2d

faith). allowed, however, upon interpre- based contract; see in- tation of the insurance Realty *Bonnie Owen Inc. v. Cin Illinois: B.I.). Co., cinnati Ins. Ill.App.3d [283 219 fra Co., Ill.Dec. (Ill.App. 294] 670 N.E.2d 1182 Virginia Tennessee: Carter v. Sur. [187 denied, appeal Dist.1996); (Tenn.1948). 5th [171 Ill.2d 595] Tenn. 216 324 S.W.2d 429], 222 Ill.Dec. 667 [677] N.E.2d Split Among Appellate Courts State’s (Ill.1997); see but Green v. J.C. Pen 963 (1 TOTAL) Co., ney Auto Ins. (7th 806 765 F.2d Cir.1986) (federal applying Illinois Harvey, Ohio: *Nationwide Co. v. Ins. [50 law allowed fee on holding award based (Ohio App.2d Ohio 363 N.E.2d 596 361] Fidelity *Trovillion v. United States (fees Ct.App.1976) available where Co., & Guar. Ill.App.3d [130 694] 474 has “insurer acted bad faith or fraud- (Ill.App. Dist.1985), N.E.[2d] 953 5th ulently litigious”); stubbornly Owen). Bonnie which was overruled *City Willoughby Hills v. Cincinnati Indiana: *Mikel v. American Co., Ambassador Ins. App.3d [26 146] Ohio 499 Co., Cos. (Ind.Ct.App. (Ohio N.E.2d Ct.App.1986) (awarding N.E.2d 1994) (fees not available when insured fees where insured has not acted bad suit; brings ruling availability no on maliciously). faith or suit). brings fees when insurer B. Fees Based Insurance Hampshire Christy, New Ins. Co. v. Iowa: Contract Provision (Iowa (no 1972) 200 N.W.2d 834 (7 TOTAL) 1. Yes fraud). showing absent of bad faith Reese, Colorado: *Wheeler v. v. *Clemmons Zurich Gen. Acci- Louisiana: 835 P.2d 572 & Allstate v. (Colo.Ct.App.1992); dent Liab. Ins. Ins. Co. 230 So.2d 887 Robins, (La.Ct.App.1969). Colo.App. [42 597 P.2d 1052 539] (fees (Colo.Ct.App.1979) are “reasonable Michigan: *Shepard Marine Constr. Co. v. expenses” company’s “at re incurred Maryland Cas. Mich.App. [73 62] quest”). (Mich.Ct.App.1976). 250 N.W.2d 541 * Cook, Fire & Cas. v. Occidental Co. Idaho: Family Missouri: American Mut. Ins. Co. (Idaho 1967) [92 Idaho 435 P.2d 364 7] Brown, v. (Mo.Ct.App. S.W.2d 375 (same). 1982) Ins., Noel, Upland Mut. Inc. v. Kansas: [214 Mut. Ins. Co. v. Hampshire: New Utica (Kan.1974) Kan. 145] P.2d Plante, [106 N.H. 214 A.2d 742 525] (same). (N.H.1965). Shippers Bankers Co. Maryland: & Ins. Jersey: Gerhardt Continental Ins. New Inc., Enters., New York Electro [287 Cos., [48 (N.J. 291] N.J. A.2d (Md.1980) (same). 641] Md. (N.J. 1966) later amended rules its court North Dakota: State Farm Fire Co. permit declaratory & Cas. fee awards discretion; (N.D.1993) Sigman, judgment suits in court’s N.W.2d E.I.). (same). infra

1249 Co., Washington: Rocky Mountain Fire & Cas. Hegler Ins. v. [270 South Carolina: Gulf Rose, (S.C.1978) P.2d Co. v. 896] 385 [62 Wash.2d 248 443 548] S.C. S.E.2d (Wash.1963). (same). 45 Olympic Co. v. Centennial S.S. Washington: D. Fees Pursuant Statute Co., 673 [117 Ins. Wash.2d 811 P.2d 37] Coverage Discourage banc) (same). (Wash.1991) (en Contests1 Declaratory on C. Fees Based (8 TOTAL) 1. Yes Judgment Statute Co., [304 v. Allstate Ins. Hicks Arkansas: TOTAL) (3 1. Yes (Ark.1990) 101] 799 S.W.2d 809 Ark. 23-79-209(a) Farm Fire & Cas. Co. § Arm. North Dakota: State (quoting Ark.Code (N.D.1993) (1987)). Sigman, v. 508 323 N.W.2d (statute relief “whenever neces- allows Devine, 211 Nat’l Ins. Co. v. Florida: *First sary proper”). or (recov- (Fla.Dist.Ct.App.1968) 587 So.2d Exch., Fire Ins.

Texas: *Smith v. 1996 WL level; but no ery fees at trial incurred Tex.App. 4002 1996 LEXIS statutory authority time suit filed insurer under declara- (awarding fees to appeal). fees statute). judgment tory Co. v. & Indus. Ins. Hawaii: Commerce Donahue, v. Elliott Wis.2d [169 Wisconsin: Hawaii, Bank 322] 832 P.2d Haw. [73 (Wis.1992). recons, 485 403 310] N.W.2d denied, Haw. [73 625] (Haw.1992). P.2d (6 TOTAL) 2. No Wong, v. Med. Inc. Co. Kansas: Missouri Ass’n, Exchange Ins. Alabama: Clark v. [276 (Kan.1984). P.2d 113 811] Kan. [234 (Ala.1964). 161 So.2d 817 334] Ala. v. Farm Fire & Cas. Co. Nebraska: State v. Arizona: *State Farm Mut. Auto. Ins. Co. Muth, 248] Neb. 207 N.W.2d [190 O’Brien, Ariz.App. P.2d 46 18] 535 [24 (Neb. 1973); State Farm Mut. (fees (Ariz.Ct.App.1975) available Selders, v. Auto. Ins. Co. 334] Neb. [189 statute; insured/plaintiff under (Neb.1972). N.W.2d availability of does not fees where decide defendant). insured Liberty Co. v. Mut. Ins. Hampshire New Home Ins. Indem. 269] N.H. [117 Mut. *Burton v. Lumbermens Louisiana: (N.H.1977). 371 A.2d 1171 Cos. (La.Ct.App.), So.2d denied, cert. La. So.2d 767 [244 895] v. Malo Amica Mut. Ins. Co. New Mexico: (La.1963) (statute not of mon for award (N.M. ney, 903 P.2d 834 N.M. [120 523] further, etary judgments; not avail (insured 1995) to fees under entitled suit not frivo able under statute where pay failed to where insurer statute lous). claim). Frohnmayer, Samuel Oregon: [308 Or. Gwinner, Or. McGraw Oregon: [282 393] (Or.1989). 779 P.2d 1028 362] (Or.1978) (fees available 578 P.2d 1250 Marchant, only where settlement under statute Cas. & Sur. Co. Utah: (Utah (fees only where 1980) six months and made within not avail- P.2d 423 money judgment recovers showing of insured statute absent able under insurer). faith). against bad attorneys' policy all reasonable holder of the example: 1. For suit, prosecution the defense or fees for judgment decree of which the or In all suits in may accident, be. health, as the case life, fire, a court is Co., 304 Ark. Allstate Ins. Hicks v. liability company ... in a suit insurance (1990) (quoting Ann. Ark.Code S.W.2d declaratory judgment under for a (1987)). 23-79-209(a) § company ... also be hable to shall Georgia E.Fees Based on Court Rule Illinois (1 TOTAL)

1. Yes Indiana Jersey: Jersey

New *New Ins. Co. v. Mfrs. Mut. Consolidated Ins. N.J.Su [124 Iowa per. (N.J.Super.Ct.Law 598] 308 A.2d 76 Louisiana Div.1973). Michigan Awarding F. Number of Jurisdictions Missouri Cohen-Type Exception, Fees Pursuant Ohio Provision, Specific Insurance Contract Tennessee

Statute, Declaratory Judgment Statute,

or Court Rule Utah

(22 TOTAL)

Arkansas

Colorado

Florida

Hawaii

Idaho Kansas CLUB, POTOMAC RESIDENCE et Maine al., Appellants/cross-appellees, Maryland

Minnesota WESTERN WORLD INSURANCE COMPANY, Appellee/cross- Nebraska appellant. Hampshire New 95-CV-1266, Nos. 95-CV-1268. Jersey New District Appeals. of Columbia Court of New Mexico New York Feb.

North Dakota WAGNER, TERRY, Judge; Before Chief Ohio STEADMAN, SCHWELB, FARRELL, KING, RUIZ, REID, Judges. Associate Oregon South Carolina

Texas ORDER Washington PER CURIAM. Virginia West petition appel- On consideration of the Wisconsin bane, lee/cross-appellant rehearing for en thereto; response and the appearing Denying G. Number of Jurisdictions Fees judges that the of this court Ground grant petition rehearing has voted to (13 TOTAL) banc, en it is Alabama petition appel- ORDERED that Arizona lee/cross-appellant rehearing en banc California granted opinion judgment

Case Details

Case Name: Potomac Residence Club v. Western World Insurance

Court Name: District of Columbia Court of Appeals

Date Published: Jan 8, 1998

Citation: 711 A.2d 1228

Docket Number: 95-CV-1266, 95-CV-1268

Court Abbreviation: D.C.