Qualls v. Farmers Ins. Co., Inc.
629 P.2d 1258
Okla.
1981
Check Treatment

*1 which does not proceedings pleadings rights of the adverse affect the substantial Therefore, 78.

party. O.S.1971 not constitute cause ruling does

trial court’s of the trial court is Judgment reversal.

for

accordingly affirmed.

AFFIRMED. J., SIMMS, and DOOLIN and JJ.,

HARGRAVE,

BARNES, and HODGES and

OPALA, JJ., dissent. QUALLS, Carolyn Qualls,

W. L. Jr. wife, Appellants,

husband COMPANY,

FARMERS INSURANCE

INC., Appellee. Supreme Court Oklahoma. Farber, Russell, Russell, Payne & J. Clark City, for Oklahoma Green, James,

Clarence P. Green Okla- City, appellee. homa for LAVENDER, Justice: from an order overrul- This is ing a motion to assess prevailing party pursuant O.S.Supp. to 36 1977, 3629 B.1 pertinent facts are as follows: 20, 1975, appellee issued a September On policy fire insurance 25, 1976, fire loss occurred. April On brought February appellants On policy. suit to recover under 1, 1977, On October effective. became prevailing party. purposes O.S.Supp. ble For “It insurer, section, receiving is the insurer shall be the judgment does not exceed to submit a written offer of settle- in those cases where judg- In all other ment of the claim to the insured written offer of settlement. prevailing party. ninety (90) days ments the insured shall be the provision to uninsured of loss. rendered to either This shall not coverage.” shall be allowa- motorist *2 1259 29,1978, a judgment jury ruling On March a The on of trial the court is reversed was entered in of and the verdict favor cause remanded for determination by the trial a court of reasonable attorney presented sole issue on is fee to be allowed to that portion whether of 36 O.S.Supp.1977, relating awarding attorney 3629 B to § fees J., BARNES, to the prevailing is to be construed as WILLIAMS, HODGES, SIMMS, DOOLIN operating retrospectively. HARGRAVE, JJ., We deem the case of Phoenix Federal OPALA, J., dissents. Savings and v. Loan Great Southwest Fire ALA, Justice, OP dissenting: Company, Okl.App., Insurance 603 P.2d 356 (1979) to be of determinative the issue in April 25, 1976 loss, After an fire an action this quoted wherein the court with was brought against the on insurer Febru approval from v. American Fidelity Cox 24, ary By today’s opinion in the Co., Assurance 581 Okl.App., 1325 P.2d parties prevailing sured —as in that suit— (1977) as follows: are allowed an attorney’s fee first general statutorily rule the authorized in that statutes will an enactment which did not become

be effec prospective operation only [Ben- 1, tive until October 1977—almost full Blair, Okl., son v. (1973)] 1363 year litigation after begun. had 36 affecting does not to pro- statutes 3629 B.1 I am § unable to cedure. Oklahoma Water Resources Bd. join in the court’s sanction of the statute’s v. Central Oklahoma Master Conservancy to benefit in the Dist., Okl., (1969). Taxing 748 sured in the case bar. My at dissent from attorneys’ of fees as costs relates to a the grounds: court’s view on rests two procedure. of mode Jeffcoat v. Highway jurisdiction In adhering Oklahoma —a Contractors, Inc., Okl.App., 508 P.2d 1083 to the so-called “American rule” —the (1972).” prevailing party’s attorney’s fee not is Appellee Federal, contends Phoenix su- a taxable of item costs. It not pra, distinguishable is because Jeffocat v. legislative be recovered absent some Inc., Highway Contractors, supra, therein enactment authorizing it. Globe O.S.1971, cited construed 12 § 936 which Republic of Company attorney allows an fee the prevailing to Independent Trucking America v. party “to costs,” be taxed and collected as Okl., Company, 644, 387 647 P.2d O.S.Supp.1977, pro- whereas 36 § allowed, When vides upon rendition of judgment “costs and attorney’s fee does necessarily not fall attorney fees be pre- shall allowable to the under the of It rubric costs. is varia- vailing party.” However, we find the stat- ble rather than Its fixed. amount utes semantically indistinguishable. In de- judicial depends on a decision rather termining 36 whether 3629 than on the of clerk’s ministerial act B assigned be retrospective pro- taxation. Were the Oklahoma statu- spective effect the differences between at- tory regime court cost to consist in its torney “to taxed and be collected as entirety similarly of variable tariffs (12 O.S.1971, costs” 936) and “costs and subject according to set be pre- be shall allowed to the discretion, judge’s it broad would vailing party” (36 O.S.Supp.1977, B) 3629 fraught doubtless be with a serious are not material differences. Jeffcoat and infirmity constitutional under our Phoenix applicable Federal are therefore Magna Charta-derived Art. here. Okl.Con., wisely prohibits provides part: pertinent (90) days ninety § 3629 “It shall of loss. insurer, receiving be either rendered to to submit a written offer of settlement or be allowable claim party.” [emphasis insured added]

1260 Howe v. Federal justice”.

“sale RICHARDS, Appellee, Nick Co., 17 P.2d Surety Coffelt, parte Ex (1933) and Okl.Cr. LAWTON, Oklahoma, a The CITY OF that these characteristics Because of municipal corporation, Appellant. *3 attorney’s an award of distinguish ordinary costs in to the victor from Supreme Court of Oklahoma. allowance, when statuto authorized, should be treated as rily recovery. element Center, Inc. v. Nation Sports’

Oliver’s Co., Okl., 615

al Standard (Opala, concur 295-297

ring). recovery element of As an additional attorney’s fee to the vic-

an award of authorized,

tor, “cre- when rights” substantive enlarges

ates and Legislation which intro- an action. liability

duces an item of added appli- not be Oper- Thomas v. Cumberland

cation. Co., Okl.,

ating When we do allow attorney’s fee under a statute litiga-

which was not in effect when wrongly we license begun,

tion had . legislature away to “take . . [an] pending ...” in a

existing defense 5, 52,2

suit in violation of Art. Okl. Maynard Nat. Bank

Con. v. Central Okmulgee, 185 Okl.

I would hold that retroactive prohibited

of 36 3629 is

by the clear of Art. command

Con. 5, 52, Okl.Con., action, Legislature power Legisla- 2. Art. have no action, any any away destroy power right ture shall have no to revive take such cause of or remedy by [emphasis existing add- have become barred defense to such suit.” time, lapse by any statute of this State. ed] any After suit has been commenced on cause of