In
Chase Resorts, Inc. v. Safety Mut. Cas. Corp.,
Relator owns the Lodge of the Four Seasons, which operated a marina located at the Lake of the Ozarks. In February 1984, a boat dock at the marina collapsed causing injuries to Mr. and Mrs. Kramer. The Kramers brought a personal injury claim against Relator. Relator was insured under a comprehensive general liability insurance policy issued by North-West Insurance Company and under a commercial umbrella liability policy issued by Safety Mutual. The Safety Mutual policy provided excess liability coverage over $500,000 up to a limit of $5,000,000 in excess of the underlying coverage provided by North-West.
During the pendency of the
Kramer
case, North-West was declared insolvent and was unable to provide the defense. After a brief time in which Relator paid for its own defense, the Missоuri Property and Casualty Insurance Guaranty Association (“MIGA”) provided for the defense pursuant to § 375.785.4(a), (b) RSMo. Cum.Supp.1984 (Repealed L.1989 S.B. 333 § A). A jury verdict of $700,000 for the Kramers was appealed.
Kramer v. Chase Resorts, Inc.,
On July 30,1990, Relator filed a declaratory judgment action seeking, among other relief, a declaration as to its right to recover legal fees and costs of $132,508.55 allegedly incurred in defense of the Kramer litigation from MIGA and Safety Mutual. Relator settled its claim against MIGA in July 1991. Respondent entered summary judgment fоr Safety Mutual, and Relator appealed.
On appeal, we found that “Safety Mutual’s definition for ‘Ultimate Net Loss’ provides that ‘Ultimate Net Loss’ means the total sum insured becomes obligated to pay by reason of liability claims, including law costs, premiums on attachment or appeal bonds, and expenses for lawyers and for litigation.” Chase I at 151. Bаsed on this policy language, we held that “Safety Mutual has a duty to pay appellant’s [Relator’s] remaining legal fees for [the Kramer litigation].” Id. at 152. We therefore reversed the judgment in favor of Safety Mutual and remanded for a determination of the amount of legal fees incurred by Relator in the Kramer litigation.
On remand, Safety Mutual filed a demand for trial by jury on the issue of the legal fees. Safety Mutual also served a subpoena duces tecum wherein Safety Mutual sought what amounts to Relator’s entire legal file on the Kramer litigation. Relator produced copies of legal bills itemized by date, services performed, hours, attorneys performing such services and amount charged, as well as spreadsheets relatеd to the Kramer litigation. It also filed objections to the subpoena duces tecum on the grounds, among others, that Safety Mutual’s request for “all other documents and records related to any and all legal services provided ...” was overbroad and called for irrelevant and immaterial information, and would require the production of documents рrotected by the attorney-client and work product privileges.
Safety Mutual later filed a supplemental request for production of documents followed by a motion to compel production of the documents it had subpoenaed in July 1994. The motion sought production of the entire file of counsel for Relator including the legal resеarch file, internal memoranda, attorney notes, correspondence file, and any additional documents contained within the law firm’s Kramer case file. Counsel for Relator filed suggestions in opposition to the motion to compel production of the documents, as well as a motion to strike Safety Mutual’s jury demand. Following a hearing, Respondent entered an order sustaining Safety Mutual’s motion to compel. Relator was ordered to produce the legal file within ten days. Respondent also indicated his intention to set the case for a jury trial. Relator then sought and obtained our preliminary writ of prohibition.
Relator maintains that Respondent has no discretion to order a jury trial to determine the reasonableness of the legal fees it incurred in defense of the Kramer litigation *835 because (1) the language of the policy is absolute and thus permits no inquiry into the reasonableness of the fees incurred and, (2) even if reasonableness is in issue, the reasonableness of attorney’s fees is a question of law to be determined by the court and not by a jury. We reject the former contention and sustain the latter.
Although the policy does not expressly limit Relator’s reimbursement to fees reasonably incurred, “[a]n attorney is only entitled to fees which are fair and just and which adequately compensate him for his services.”
Terminal Railroad Ass’n of St Louis v. Schmidt,
This does not mean, however, that a jury trial is necessary or appropriate to determine the reasonableness of the legal fees incurred in the
Kramer
litigation. Once liability on a contract has been determined, damages in the form of attorney’s fees permitted under the contract follow as a matter of law, and the trial court may calculate these amounts and enter judgment accordingly.
Campbell v. Kelley,
In
Chase I,
we determined that Safety Mutual has a duly to pay Chase Resorts’ remaining legal fees for the underlying
Kramer
litigation.
Safety Mutual claims that it is nevertheless entitled to a jury trial based on Article I, Section 22 of the Missouri Constitution, 1 the Declaratory Judgment Act, and because factual disputes exist between Relator and Safety Mutual over the allocation and reasonableness of the legal fees claimed by Relator.
We reject the constitutional claim summarily because it is unsupported by any authority addressing the constitutional grounds asserted and because none of the cases cited by Safety Mutual establish that Missouri has ever recognized a common law right to a jury trial to determine the reasonableness of attorney’s fees once liability therefor has been established. At best, Safety Mutual’s cases suggest that a jury trial is in order where the issue of liability is submitted to the jury and attorney’s fees are an element of allowable damages.
See, e.g., O’Neil Lumber Company v. Allied Builders Cоrporation,
Nor do we find any right to a jury trial in these circumstances by reason of the Declaratory Judgment Act, § 527.090, RSMo 1994, which provides:
When a proceeding under sections 527.010 to 527.130 involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.
As discussed above, once liability therefor has been established, the reasonableness of attorney’s fees is a question of law, not a question of fact. Particularly instructive in this regard is
American Bank of Princeton v. Stiles, supra.
In that case, the court held that even if a defendant files affidavits challenging the reasonableness of attorney’s fees, this does not create a genuine issue of material fact precluding summary judgment.
Safety Mutual urges, however, that discovery to date has yielded information suggesting that Relator has included in its claim amounts attributable to legal advice on coverage issues аnd not just expenses attributable to the defense of the Kramer litigation. Thus, Safety Mutual argues, there is a question of fact concerning the proper allocation of attorney’s fees which is sufficient to remove this case from the ambit of the general rule that the reasonableness of attorney’s fees is a question of law to be decided by the court. Relator counters that the question of whether it is entitled to claim reimbursement for advice about coverage issues has not yet been decided and, even if reimbursement is limited to litigation expenses, proper allocation of the fees claimed is still a matter to be decided by the court.
We find that the issue of whether Relatоr is entitled to reimbursement for advice concerning coverage as opposed to litigation defense costs was decided in
Chase I.
In
Chase I,
we specifically held that “Safety Mutual has a duty to pay [Relator’s] remaining legal fees
for the underlying litigation.”
We disagree, however, that the necessity of limiting Relator’s reimbursement to fees and expenses incurred in the
Kramer
litigation somehow transforms the issue on remand into a jury issue. Indeed, as the cases cited by Safety Mutual recognize, it will be Relator’s burden on remand to properly segregate and allocate fees attributable to the
Kramer
litigation and a failure to do so may serve as a basis for denial of recovery altogether.
See, e.g., Funding Systems Leasing Corp. v. King Louie Int’l, Inc.,
Issuance of a Writ of Prohibition is generally the appropriate remedy to forestall unwarranted and useless litigation.
State ex rel. Police Retirement System of St. Louis v. Mummert,
In its second point, Relator urges that Respondent abused his discretion in ordering production of the entire legal file in the Kramer litigation. Relator asserts that the legal file contains material protected by the attorney-client and work product privileges and that the materials are not relevant to the issue to be decided by the court — ie., the reasonableness of its attorney’s fees. Safety Mutual does not dispute the privileged nature of the subpoenaed materials but argues that the privilege has been waived by virtue of Relator’s assertion of its claim for reimbursement of fees. Safety Mutual also asserts that the materials are relevant and probativе on the issues of whether the legal work was actually performed and whether the charges for the work are reasonable. 2
We find no waiver of the attorney-client privilege.
3
Safety Mutual correctly urges that anticipatory waiver of the attorney-client privilege may occur where the client places the subject matter of the privileged communication in issue in the litigation.
Sappington v. Miller,
*838
Absent a waiver, privilegеd materials are immune from discovery. Rule 66.01(b)(1);
Board of Registration for the Healing Arts v. Spinden,
For the foregoing reasons, we order that our preliminary writ heretofore issued be made absolute. Respondent is ordered to refrain from submitting Relator’s claim for fees to a jury and is prohibited from ordering the production of Relator’s legal file from the Kramer litigation.
Notes
. Article I, Section 22 of the Missouri Constitution provides, in pertinent part: "The right of trial by jury as heretofore enjoyed shall remain inviolate.... ”
. At oral argument, Safety Mutual stated that production of the legal file would facilitate expert testimony on such matters as whether preparation of a particular memorandum would reasonably require the amount of time billed. Counsel conceded, however, that such testimony would be of minimal, if any, value if the issue were tried to the court rather than a jury.
. For the sake of convenience, we address the waiver issue in the context of the attorney-client privilege, as did Safety Mutual in its brief. We have not been cited nоr have we discovered any authority suggesting a different waiver analysis for the work product privilege.
.We find
Potomac Electric Power Co. v. California Union Ins. Co.,