Bianco, P.A. v. Home Ins. Co., 95-589.
| Citation | 786 A.2d 829 |
| Decision Date | 05 December 2001 |
| Docket Number | No. 95-589.,95-589. |
| Parties | BIANCO, P.A. and another v. The HOME INSURANCE COMPANY. |
| Court | New Hampshire Supreme Court |
Wiggin & Nourie, P.A., of Manchester (Gordon A. Rehnborg, Jr. and Doreen F. Connor on the brief, and Mr. Rehnborg orally), for the plaintiffs.
Nelson, Kinder, Mosseau & Saturley, P.C., of Manchester (William C. Saturley and Catherine A. Blanchard on the brief), and Cetrulo & Capone, LLP, of Boston, Massachusetts (David A. Grossbaum on the brief, and Maura K. McKelvey orally) for the defendant.
Plaintiffs James Bianco and Eric Falkenham appeal from a Superior Court (Conboy, J.) order interpreting RSA 491:22-b (1997) as providing discretion to reduce an award of costs and attorney's fees. In addition, the defendant, the Home Insurance Company, objects to a judicial referee's recommendation for the award of supreme court costs and attorney's fees. We affirm the trial court's finding that the fees were not severable and that other charges, for overhead and the filing of a motion, were not reimbursable. We reverse the trial court's decision to reduce the fees by thirty percent. We adopt the recommendation of the judicial referee awarding fees and costs.
The relevant facts follow. Bianco, P.A., James Bianco, Michael Farley and Eric Falkenham were sued in 1994 for legal malpractice. At the time, the plaintiffs were insured under a professional liability policy by the defendant. The defendant denied coverage to all four plaintiffs and the plaintiffs subsequently filed a petition for declaratory judgment in the superior court. The superior court ruled that the defendant was obligated to defend and extend coverage to all four plaintiffs for the underlying malpractice claim. The defendant appealed and this court eventually determined that only James Bianco and Eric Falkenham were entitled to coverage.
The plaintiffs filed a motion for court costs and reasonable attorney's fees in the superior court, pursuant to RSA 491:22-b. By order dated January 19, 2000, the superior court found that the costs incurred on behalf of the two successful plaintiffs were not severable from the costs incurred on behalf of the two unsuccessful plaintiffs. Therefore, after determining appropriate court costs and reasonable attorney's fees, the trial court reduced the award by thirty percent, awarding $33,235.04, plus reasonable fees related to the filing of that motion.
A motion for court costs and attorney's fees for supreme court proceedings was filed in this court as well. We referred the petition to a judicial referee, who determined that the unsuccessful claims were not severable from the successful claims. He recommended that the prevailing plaintiffs be awarded costs and fees in the amount of $23,222.50, together with reasonable attorney's fees and costs related to the filing of that motion. The award represents the entire sum requested, minus certain fees and costs deemed not recoverable. Both parties object to the judicial referee's findings and recommendation.
We first address the trial court's allocation of costs and attorney's fees. RSA 491:22-b provides: "In any action to determine coverage of an insurance policy pursuant to RSA 491:22, if the insured prevails in such action, he shall receive court costs and reasonable attorney's fees from the insurer." The trial court determined that an inability to allocate costs and fees between prevailing plaintiffs and non-prevailing plaintiffs did not mean that the prevailing plaintiffs were entitled to full reimbursement of costs and fees. Rather, the trial court considered factors taken from Couture v. Mammoth Groceries, Inc., 117 N.H. 294, 296, 371 A.2d 1184 (1977), to determine the reasonable percentage allocation of costs and fees between the prevailing and non-prevailing plaintiffs.
Relevant factors in the determination of reasonable fees include the amount involved, the nature, novelty, and difficulty of the litigation, the attorney's standing and the skill employed, the time devoted, the customary fees in the area, the extent to which the attorney prevailed, and the benefit thereby bestowed on his client.
Couture, 117 N.H. at 296, 371 A.2d 1184. After considering these factors, specifically the extent to which the plaintiffs' attorneys prevailed and the benefit they bestowed on the plaintiffs, the trial court determined that a thirty percent reduction in court costs and attorney's fees was appropriate.
When reviewing an award of attorney's fees mandated by statute, the usual standard of review is the abuse of discretion standard. See White v. Francoeur, 138 N.H. 307, 310, 638 A.2d 1250 (1994). The reversal of a discretionary decision under this standard, however, is not a reflection upon the conduct of the trial judge, but rather is an appellate determination that the record fails to disclose an objective basis for a sustainable exercise of discretion.
"This court ... is the final arbiter of the legislature's intent as expressed in the words of the statute considered as a whole." Pope v. Town of Hinsdale, 137 N.H. 233, 237, 624 A.2d 1360 (1993). Stevens v. Town of Goshen, 141 N.H. 219, 221, 683 A.2d 814 (1996) (quotation omitted). The statutory language employed in RSA 491:22-b provides that court costs and reasonable attorney's fees shall be paid. Once it is determined that the insured has prevailed, RSA 491:22-b provides discretion to determine solely whether the requested attorney's fees are reasonable. However, where the trial court determines fees are nonseverable between prevailing and non-prevailing plaintiffs, it is axiomatic that those fees cannot then be segregated. Therefore, we hold that where fees are reasonable, but incapable of being severed, RSA 491:22-b requires that the prevailing plaintiffs be awarded all court costs and reasonable attorney's fees. There is no indication here that the trial court reduced or eliminated specific fees based upon their reasonableness. Rather, it seems the court generally reduced the fees, across the board,...
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