*1 28-2-306(1) is Griffith award- dealing output and seven the contract. contracts appeal. ed costs and following: provides the quantity measures the A term which EISMANN, TROUT, BURDICK Justices require- or output seller and JONES concur. buyer means such actual out- ments of good put requirements as occur in or

faith, quantity unreasonably except that no any or stated estimate

disproportionate of a stated estimate to the absence comparable prior out-

normal or otherwise

put may be requirements tendered

demanded. P.3d 614 PARSONS, Plaintiff-Respondent, Rena damages may difficult While to deter- mine it clear that the Clear Lakes breach is deprived opportunity of the Griffith to com- INSURANCE MUTUAL OF ENUMCLAW plete performance the contact re- for the COMPANY, Defendant-Appellant. years years and that losses for maining those No. Consequently portion of the occurred. decision court is district vacated Idaho, Supreme Court damages to determine case remanded Boise, January 2007 Term. years and seven. six 2, 2007.

Feb.

VII.

ATTORNEY FEES claims that

Clear Lakes Griffith was prevailing party

not below. The fact

they they initially less than recovered re

quested keep being not them does from

prevailing party. Lakes’ Clear counterclaim change the outcome. The amounts by Clear Lakes

recovered were offsets they obligated the amounts that were Recognition

to pay these Griffith. prevent being

amounts does not Griffith from prevailing party. grant The district court’s 12- fees to Griffith under I.C.

120(3)is affirmed. prevailing party appeal,

As Griffith

is also to reasonable entitled 12-120(3).

appeal. I.C.

VIII.

CONCLUSION af- decision of the is part part and vacated as outlined

firmed The case remanded for this decision. damages years six determination of

Cantrill, Skinner, LLP, King, Sullivan & Boise, appellant. Casey Clinton O. ar- gued.

Holzer, Harrison, Boise, Edwards & respondent. argued. Kurt D. Holzer EISMANN, Justice. appeal challenges

This the reasonableness of the award of fees to an insured pursuant to Idaho Code 41-1839. The in- surer contends that the district court abused in awarding attorney its discretion fees in an contingent amount consistent with the agreement than in an rather amount based hourly upon fee. affirm We court.

I. AND FACTS PROCEDURAL HISTORY August On or about Rena Par- (Parsons) injured sons in an automobile pursuant with costs entirely negligence caused collision served 41-1839. Parsons Idaho Code had an driver. other driver another day. On the next complaint and summons liability limits of policy with of Enumclaw November Compa- $50,000 by Allstate Insurance issued Parsons, ac- $60,000 she which tendered (Allstate). by an Parsons was covered ny *3 personal of her cepted payment as the full by Mutual of Enum- policy issued motorist injury claim under the underinsured (Mutual Company of Enum- claw Insurance coverage. claw) $100,000 provided in under- and which coverage. 3, 2005, insured motorist filed motion October Parsons On pursuant of fees seeking an award driver, other Parsons filed suit § 41-1839. to Idaho Code ultimately policy tendered the and Allstate of amount fees awarded her $50,000. Enumclaw au- limits of Mutual of appealed. $20,000, of Enumclaw and Mutual payment. accept Parsons to that thorized damages ex- contended that her Parsons APPEAL II. ON ISSUES liability coverage of under the limits ceeded adequate to provide 1. Did Parsons fail 21, 2004, policy. September On the Allstate proof of loss? counsel, Parsons, her submitted a through rule 2. we revive the announced Should requesting of Mutual Enumclaw letter Company v. Cascade Insurance Carter justly it under her “the amount due” that an insured cannot recover and hold coun- coverage. Her underinsured motorist § 41- under Idaho fees Code specify did not an amount Parsons sel there evidence that 1839 unless due, justly simply stated claimed was but unreasonably unjustly in or insurer acted policy it limits of the un- exceeded justly failing pay the amount due with- copy A coverage. motorist of derinsured proof days receiving the of thirty after regarding file the accident was en- Allstate’s loss? the letter. closed with discretion 3. Did district court abuse its Mutual of Enumclaw submitted Parsons’s awarding fees? from the file to a medical records Allstate of attor- Is Parsons entitled to award corporation engaged, among things, in appeal? reviewing injury liability of business reviewing After Parsons’s medical claims. III. ANALYSIS records, En- corporation sent Mutual of Enumclaw raises three issues umclaw a letter dated October 2004. The below, we appeal. For the reasons stated in that was primary issue addressed letter will will the first two issues and not address surgical Parsons’s fusion at C5-6 only address the third. and C6-7 done one week after accident pre-existing or to was related the accident an Ade- A. Did Fail to Provide Parsons stated, degenerative changes. The “It letter quate Proof of Loss? difficult indicat- seems more to make case 41-1839(1)1 provides § Idaho Code the accident surgery wasn’t related to liable for fees that an insurer is it indicating to make a case was related to recover brought its insured action It recommended certain accident.” policy if the insurer failed however, investigation, to be more additional “for justly due to insured the amount surgery certain that the was related thirty loss period proof after of accident. provided poli as in such been furnished has 26, 2004, Parsons filed this appeal On October cy.” alleges of Enumclaw Mutual seeking provided of Enumclaw proof lawsuit Mutual of loss it that the Idaho Code comply amount due” under the not sufficient to to recover “the was 41-1839(1). coverage together motorist underinsured whatsoever, demnity any kind nature provides: 1. The statute (30) days period for a which shall fail issuing any policy, Any certificate or insurer insurance, pro- as guaranty has been furnished surety, or in- loss contract 2004, Parsons, September 21, On through we added to Idaho Code 41-1839 a re- attorney, sent a letter to Mutual of En- quirement that “there must be evidence that demanding payment umclaw unreasonably unjust- an insurer has acted justly due under Parsons’s underinsured mo- ly court may attorney’s before a coverage. torist Enclosed with the letter under I.C. years 41-1839.” Five later a copy of Parsons’s medical records that Corp. Associates Discount Idaho v. Yo- had been provided There is Allstate. semite Insurance nothing in the indicating record por- overruled that of Enumclaw demanded additional infor- opinion tion the Cascade be- Insurance By mation. letter dated November “engrafts upon cause it require- the statute a $60,000 it tendered to settle Parsons’s under- *4 we ment which now feel is unwarranted.” stated, insured motorist claim. letter That Mutual of Enumclaw asks tous revive that “We have based our evaluation on the docu- portion of the opinion Cascade Insurance you provided mentation to us and received that we overruled. 23, September 2004.” submitted brief opposition request in to Parsons’s an for engrafted require- We had also another fees, Enumclaw, award of upon ment the statute. In Anderson v. stated, Parsons, attorney, its “Ms. Co., 759, 755, Farmers Insurance 130 Idaho counsel, through proof submitted of 1003, (1997), held, 947 P.2d 1007 we “Attor- to loss the Defendant Mutual of Enumclaw fees be awarded to an insured un- (MOE) 21, September Now, 2004.” Mutu- only der I.C. 41-1839 when the insured al of Enumclaw contends that Parsons did option had no other to file suit proof not submit a sufficient of loss. in his or her insurer to order recover Mutual of Enumclaw did not raise in the years or ago his her loss.” in Four Martin trial court the issue of whether had v. Farm State Mutual Automobile Insurance adequate proof submitted an of loss. “The Co., 244, (2002), Idaho 61 P.3d 601 we longstanding rule of this Court is that will we disapproved portion of Anderson be- not consider issues that are for the raised requirement cause it added not contained appeal.” Murray Spalding, first time on v. statutory in the language. We stated 99, (2005). 101, 425, 141 Idaho 427 Martin: exception an We have made for constitutional necessary issues if their consideration is requirement Because there is no in the subsequent proceedings in the Id. case. plaintiff ‘compelled’ that the statute That exception apply here. We action, bring opinion stating our other- therefore decline to address this issue. wise Anderson is inconsistent with the disapproved. A statute and is cardinal B. Should We Revive the Rule An- statutory rule of construction is that where nounced Carter v. Cascade Insur- plain, unambiguous, a statute is clear and Company ance In- and Hold that plain courts are constrained follow Attorney sured Recover Cannot Fees meaning, add or and neither to the statute Under Idaho 41-1839 Code Unless by judicial away take construction. There Is Evidence that Insurer Unreasonably Unjustly Acted 247, Id. at 61 P.3d at 604. Failing Pay Justly the Amount Due Days Thirty Receiving within after In Martin v. Farm Mutual Au State Proof Loss? 244, 61 tomobile Insurance 138 Idaho held that Idaho P.3d Code Company, In Carter Cascade Insurance 136, 566, 41-1839(1) 140, (1968), § two requirements 92 Idaho contains contract, vided certificate or the terms of the certifi- in such policy, recovery policy, entitled thereto contract, cate such as pay person further amount justly due under such certificate or con- adjudge policy, shall as attor- court reasonable brought tract, shall action thereafter any fees in such action. ney's the insurer court in this state for any agree- contingent fee much on the emphasis be entitled to award an insured to (1) ment. provide must fees: insured required by as proof loss at calculation of reasonable “The (2) fail to policy; and the insurer must torney discretion of is within the due the amount within Auth., Bldg. Bott v. Idaho State trial court.” receipt of loss. Martin (1996). 737, P.2d regard- argument made it also clear party opposing the is on the “The burden obtaining an requirements for award court demonstrate that 41- fees under Idaho Code Agri abused discretion.” Eastern 1839(1) upon wording based must be Neibaur, Ass’n v. cultural Credit statutory The issue one of the statute. To deter Arguments re- construction. for additional its dis mine the trial court abused statutory quirements not contained in the (1) cretion, whether the trial we determine: legislature, language be made to the must correctly perceived the issue as one court not this Court. discretion; trial acted whether the of its within the outer boundaries discretion If Enumclaw contends ap consistently legal with the standards a third in the requirement there should be *5 it; specific plicable to the choices available statute, present argument it must and au and the trial court reached thority showing that the statute as written by an reason. Id. decision exercise of requirement. It contains such third has not fees, awarding attorney’s a “When any argument so. not done It has made the applicable district court must consider regarding proper the construction of the 54(e)(3) may in and factors set forth I.R.C.P. statutory merely language. It asked us has any that court factor the consider to revive Carter v. Insurance Cascade Com Hines, v. 129 appropriate.” deems Hines 136, 140, 566, pany, 92 Idaho 438 P.2d 570 (1997). 855, 20, 847, “Rule Idaho 934 P.2d 28 (1968). not We will consider issues cited on 54(e)(3) require not the district court to appeal supported by propositions that not are record, only to specific findings make in the law, authority, argument.” Callaghan of determining in consider the stated factors 190, Callaghan, 185, v. 142 Idaho 125 P.3d considering the amount of the fees. When (2005). 1061, 1066 We therefore decline to factors, how the courts need not demonstrate this address issue. they those in reach employed of factors Mitton, ing an 140 award amount.” Smith Did Its C. the District Court Abuse Dis- (2004). 367, Idaho 376 Attorney Awarding cretion in Fees? addition, specifically “court not ad the need the contained in I.R.C.P. dress all of factors only actually presented The issue 54(e)(3) writing, long in as the record so appeal by this is whether the district court clearly court indicates that the considered determining abused its discretion in the Co., Title them all.” Boel v. Stewart Guar. attorney amount fees. Because (2002). 768, 9, 16, 43 775 The 137 Idaho P.3d Mutual of Enumclaw did not tender record that in this shows case thirty days due within all listed considered of factors loss, receipt of the of Parsons was 54(e)(3). Rule attorney entitled an award of reasonable fee. Martin v. State Farm Mutual Automo argues Mutual of Enumclaw that the dis- Co., 244, 138 61 bile Insurance Idaho P.3d adequately not consid- trict court could have (2002); (“[t]he After consider 601 I.C. 41-1839. ered first factor listed time 54(e)(3) ing the set forth in Rule not required”) factors labor because Parsons did Procedure, sufficiently the Idaho Rules of Civil the dis information as to provide detailed attorney agreed in the trict court sum that Parsons’s awarded factor. $20,000. represent contingent fee of one- Mutual of Enumclaw contends her That fee all recovery. third covered that the award of fees was unrea arising from motor placed claims sonable because the district court too she have collision, including during vehicle both the claim The district court’s comments against the other hearing placed driver and the underin- it significant weight show that sured motorist claim Mutual of En- on the fact that had retained umclaw. Her keep contingent did not agreement. time under a records, but he that spent estimated his firm district court commented that the intent forty a total of of Idaho represent- hours Code 41-1839 was to make the ing Parsons. Mutual Enumelaw insured whole. That is contends consistent with our spent estimate of time statement Penrose v. Commercial Travel Co., 539, representing 524, insufficient ers Insurance Parsons is because it does not break P.2d down the time between “does statute provide any go lawsuit the other driver and additional sum to this provided lawsuit. insured over and above that in the attempts prevent contract but the sum reasonably by Time spent attorney in a therein provided being from diminished begin drafting lawsuit does not expenditures attorney.” for the services of an 11(a)(1) complaint. Rule of the Idaho Accord, Martin v. State Farm Mutual Auto requires Rules Civil Procedure attor- mobile Insurance ney to inquiry make reasonable into the (2002); Halliday v. Farmers filing and law facts before the lawsuit. The Exchange, Ins. litigation against the other driver was direct- ly related to this lawsuit. Parsons had to clearly The district court understood policy recover at least the limits the other discretion, this was a matter and it liability coverage driver’s order to have an reached its decision exercise of reason. underinsured motorist claim Its decision was within outer boundaries of Enumelaw. certainly The district court *6 legal of its discretion consistent and with the spent by that understood the time Parsons’s applicable specific standards choices attorney filing complaint against the available to it. In Brinkman v. Insur Aid During Mutual Enumelaw was minimal. Co., 1227, ance 115 Idaho 766 P.2d argument on attorney Parsons’s motion for (1988), held, “An amount equal we fees, Mutual argued of Enumclaw’s counsel contingent standard fees the is same locale only this that lawsuit lasted seventeen clearly not an amount that is erroneous.” that and Parsons’s counsel could not have Young v. State Farm Mutual Automobile much complaint. done more than draft the Co., 122, Insurance 898 P.2d 53 dispute Parsons’s counsel did not that. only upheld award that was contingent cases, one-half of fee. In the both did not Enumelaw contend the amount awarded was within the discre contingent agreement that the one-third fee tion of the trial court. Mutual of Enumelaw in this case was unreasonable. As the dis has failed that to show noted, trict court sometimes under a contin abused in awarding its discretion Parsons gent agreement attorney fee will recover $20,000in attorney fees. hourly more he or she under an would fee, attorney and will sometimes the recover D. Is Entitled to an Parsons Award Likewise, nothing less at all. the attor Attorney Appeal? on Fees ney’s client will sometimes more than he attorney paid hourly or she would have under an an award of fee Parsons seeks § agreement, will at 41- appeal pursuant and the client other times to Idaho Code nothing legal less at all ser 1839. She was entitled to an award of attor court, contingent agreement ney rendered. A vices fee fees under that statute the trial challeng prevailed appeal that was reasonable entered into and she has on the when simply of that not become unreasonable because in the reasonableness award. She more than therefore also to an award of attor the end recovers he entitled hourly ney appeal would on 41- or she have under fee con fees Idaho Code Farm Auto- tract. Martin v. State Mutual Co., action. attorney’s fees such reasonable as Insurance mobile in- provide that the (2002); provision This does not Halliday v. Ins. Ex- Farmers claim for the entire sured can collect the fee change, 89 Idaho

but, rather, by the for the occasioned fees prompt payment of the action to CONCLUSION IV. owing by insurer. judgment affirm the of the district We de- the district court’s problem with the respondent court and award costs on fo- award is that it termination of fee appeal, including a reasonable fee. by factors to work done cused on the related That on the entire claim. Parsons’ Tem TROUT and Justice Pro Justice is, expended from the time the work concur. KIDWELL ease, time through first took the expended Justice SCHROEDER attended oral with the tortfea- Chief settlement carrier, in the the suit argument participate but did not sor’s insurance time opinion. Mutual Enumclaw. concluded larger primarily This focus was the result JONES, J., part CONCURRING attor- the fee affidavit submitted Parsons’ part. DISSENTING day related to work done from the which opinion, I concur with the Court’s with the engaged him. The affidavit did exception portion up- 54(e)(3) of that of Part IIIC contain a breakdown of the I.R.C.P. holding amount of the fee award and they pertained to the action factors as awarding HID I appeal. Part would I of Enumclaw. Mutual believe court’s failing vacate and re- limit the district court erred in mand for the amount of inquiry determination of focus the additional fees of its fees necessitated suit of this have been result action. of Enumclaw. noted in v. Farm Bureau This Court Wolfe Ins. agree portion I Part IIIC operation I.C. 41-1839 holds wherein the Court that Parsons was requires an action filed court and to be entitled to an award of a reasonable filing of that an action is commenced with the fee under 41-1839. I.C. This Court made certainly a fee award can complaint. While *7 clear in v. State Mutual Martin Farm Auto- work, preparatory such as the letter include 244, 248, mobile Insurance 61 attorney Mutual Enum- Parsons’ sent to P.3d 605 “if the 21, 2004, the September along claw with on thirty company days makes no tender within information, proof it would encom- of loss not ... is liable for amount of [it] reasonable attorney’s the mat- pass her entire work attorney fees, compensation the insured’s as in ter the time first retained him from she Here, make to the insured whole.” rather July of 2004. $100,000 making a tender than the less policy by Parsons or 54(e)(3) limits demanded advis- requires that the trial I.R.C.P. ing Parsons that the of loss was insuffi- court, award, setting the of the amount fee cient, therein, Mutual of chose to remain Enumclaw all eleven factors stated consider thirty days following silent for more than the plus any additional factor the court deems demand, attorney making Lettunich, itself liable for appropriate. Lettunich (2005). § 41-1839. fee under I.C. 425, 435, 111 inquiry The this must con- focus of also be view, my the erred in In district court hand, larger action not fined to the at some inquiry. fee failing to narrow the focus of its failing controversy involving parties. By the 41-1839(1) provides § that an I.C. insurer the with- to confine its examination of factors justly pay fails the amount due which the context the suit days after policy under a within receiv- Enumclaw, the district court erred. action ing proof of loss “shall thereaf- situations, pay analogous ... In we have held brought against the insurer such ter attorney to be adjudge statutory the fees are confined further amount as court shall dispute by particular out, the covered the statute. it turns As both Parsons and her 7-911, § attorney profited by Under I.C. attor have allowed virtue of fee the full matter, hearing After for an action to confirm enforce award. the the fee attorney underly Parsons’ submitted additional af- an arbitration award but not for the fidavit, $20,000 indicating the how additional Corp., arbitration. Driver v. 139 Ida SI be (2003). According would divided between them. In ho $20,000 attorney, aggre- the the would be performance payment suit enforce a $60,000 gated with the and the bond, one-third attorney we have allowed fees under contingency applied fee would be § not for I.C. 54-1929 but the defense of a Thus, combined sum. instead of getting brought counterclaim breach of contract $40,000 that she would have received if Mu- Precast, in the same action. Oldcastle Inc. v. tual of Enumclaw had been earlier Inc., Parktowne Const. tender, $53,336. making its she would receive $26,664, get Her would instead purpose The of I.C. 41-1839 not fur- is $20,000. by thered awarding Parsons the full amount not It is clear from the record whether the contingency agreed upon fee that was district court its considered this factor in lawyer between herself and her for the entire light determination. This factor came to af- penalty claim. I.C. 41-1839 is “not a but is hearing, ter the where the court had recited compensation an additional sum rendered as factors, it had considered Rule 54 when the insured entitled to recover but no mention was made in the eventual policy, prevent the insurance ‘to sum Nor, decision. was written there mention provided being therein from diminished made in either instance the court expenditures the services ’ ” had considered the fact that a had demand Martin, ... Idaho at 61 P.3d at $100,000 been made the amount of but 604. The evidence before the court district amount due later be was determined to agreed was that had Parsons her $40,000 obviously less. This would be anoth- contingency a one-third fee for er factor relevant to consider. amounts recovered for the entire claim. Thus, respect to the motorist uninsured estimation, my fee court’s claim, Parsons her one was excessive because the court did “justly Although third the amount due”. inquiry confine to the amount of fees policy limit of demanded necessitated lawsuit $100,000, $60,000 settled for as the she Enumclaw. I would vacate award and Thus, being justly due. amount her back remand to the district for deter- $20,000. was to On of the fees that mination amount of the court hand, recovery would be respect finds to be reasonable with $40,000. purpose of I.C. 41-1839 *8 section 41-1839 suit Mutual of Enum- by insuring be would served would claw. I not determine Parsons to suit fees incurred prevailing party and would not award recovery. eat Enumclaw would not into this appeal.

However, some- saw it court, differently. According to “it

what to me that this statute is

seems intended whole, give

make this client her the 20 words, back.” In

grand

court believed that the statute intended claim, cover her fee for the entire required

rather the incremental filing preparing the suit Mu- bring pay-

tual of Enumclaw to about the

ment.