Coker v. Pilot Life Ins. Co.

• Decision Date: 21 August 1975
• Docket Number: No. 20088,20088
• Citation: 217 S.E.2d 784,265 S.C. 260
• Parties: Jerry Wayne COKER, by his guardian ad litem, Dorothy Coker Wells, Respondent, v. PILOT LIFE INSURANCE COMPANY, Appellant.
• Court: South Carolina Supreme Court

Page 784

217 S.E.2d 784

265 S.C. 260

Jerry Wayne COKER, by his guardian ad litem, Dorothy Coker Wells, Respondent, v. PILOT LIFE INSURANCE COMPANY, Appellant.

No. 20088.

Supreme Court of South Carolina.

Aug. 21, 1975.

James H. Watson and Carl G. Ferguson, Leatherwood, Walker, Todd & Mann, Greenville, for appellant.

Marshall Abercrombie, Laurens, Ronald L. Motley, Barnwell, and William T. Jones, Jr., Greenwood, for respondent.

BUSSEY, Justice.

This appeal is concerned with the liability of an insurer for attorneys' fees under the provisions of code section 37--167.1 (1974 Supp.) The defendant-insurer issued to the plaintiff-respondent, Jerry Wayne Coker, a disability insurance policy. Upon Coker's becoming totally disabled in an accident the insurer paid benefits under the said policy from November 1, 1967 to August 1971, when it discontinued such and refused to make any further payments. Action was commenced on behalf of Coker in September, 1973. The case came on for trial before the Honorable George Bell Timmerman, presiding in Laurens County on March 18, 1974. The jury returned a special verdict to the effect that Coker was disabled as that term was defined under the policy and the applicable law of the State of South Carolina. Following such, judgment was entered against insurer on March 21, 1974 for the amount due by the insurer through that date. The term of Court of Common Pleas of Laurens County adjourned sine die on March 29, 1974.

Thereafter on April 10, 1974, counsel for plaintiff served notice of a motion for the assessment of attorneys' fees under the provisions of aforesaid section 37--167.1, said motion being returnable before Judge Timmerman, still presiding in the 8th Judicial Circuit, at the Greenwood County Court House. Counsel for defense appeared and resisted such motion on numerous grounds, but it was stipulated that if plaintiff was entitled to attorneys' fees he was entitled to the maximum amount under the statute, to wit: $2,500.

The code section here involved provides, in pertinent part, as follows:

'Liability for attorneys' fees where insurer has refused to pay claim.

(1) In the event of a claim, loss or damage which is covered by a policy of insurance or a contract of a nonprofit hospital service plan or a medical service corporation and the refusal of the insurer, plan or corporation to pay such claim within ninety days after a demand has been made by the holder of the policy or contract and a finding on suit of such contract made by the trial judge of a county court or court of common pleas that such refusal was without reasonable cause or in bad faith, the insurer, plan or corporation shall be liable to pay such holder, in addition to any sum or any amount otherwise recoverable, all reasonable attorneys' fees for the prosecution of the case against the insurer, plan or corporation. The amount of such reasonable attorneys' fees shall be determined by the trial judge and the amount added to the judgment. In no event shall the amount of the attorneys' fees exceed one third of the amount of the judgment or the sum of twenty-five hundred dollars, whichever is less.'

Following a hearing the presiding judge awarded plaintiff attorneys' fees in the amount of $2,500, and the insurer now appeals.

Appellant's first contention is that the lower court had no jurisdiction to entertain the plaintiff's motion after sine die adjournment of the term of Court of Common Pleas in Laurens County. In support of this contention the insurer relies upon cases such as Burns v. Babb, 190 S.C. 508, 3 S.E.2d 247; Eagerton v. Atlantic Coast Line R. Co., 175 S.C. 209, 178 S.E. 844; and Shillito v. City of Spartanburg, 215 S.C. 83, 54 S.E.2d 521. These cases all support the proposition that, with certain exceptions, when a trial judge adjourns his court sine die, he loses jurisdiction of a case finally determined during that term. In some of these cases not only had a particular term of court been adjourned sine die, but the presiding judge had departed the circuit. It is conceded that there are some exceptions to the general rule and none of the cases cited by the insurer is, we think, in point with or controlling of the situation here.

The insurer's liability for the periodic benefits through the time of trial had been finally determined prior to sine die adjournment of the Common Pleas Court for Laurens County, but its liability, if any, for attorneys' fees had not even been raised, let alone determined. Not only was Judge Timmerman still presiding in the circuit, but under the terms of the statute, he was the only judge who, absent some unusual circumstance not here present, had jurisdiction to determine such issue.

The statute clearly reflects that the determination of an insurer's liability for attorneys' fees is a matter for decision by the judge who tries the case. Until the main issue of liability under the policy has been tried and determined, the trial judge is in no position to determine whether or not the insurer had reasonable cause to refuse payment and defend. It is necessarily contemplated that such determination be made by the trial judge after the main issue is decided favorably to the insured. The statute provides that the amount of any attorneys' fees shall be 'added to the judgment.' In brief, the statutory language clearly contemplates, we think, a proceeding by the trial judge after the achievement of a favorable result by the insured, and hence, the proceeding for the assessment of attorneys' fees was not a case or issue finally determined prior to the sine die adjournment of the Laurens County Court of Common Pleas.

Appellant argues that the insured's claim for attorneys' fees should have been pled in his complaint and that only evidence introduced at trial of the principal issue should be considered by the court in determining whether or not the insured has a valid claim for attorneys' fees. We deem both of these contentions to be clearly without merit. We find nothing in the statutory language to support such contentions. To the contrary, we can conceive of the insurer, in most instances, objecting to allegations and/or proof of bad faith, or lack of reasonable cause for the denial of liability, being injected into the trial...