Cox v. American Fidelity Assur. Co., 49643
Decision Date | 20 September 1977 |
Docket Number | No. 49643,No. 2,49643,2 |
Citation | 581 P.2d 1325 |
Parties | Albert E. COX and Deborah Cox, Appellees, v. AMERICAN FIDELITY ASSURANCE COMPANY, an Oklahoma Insurance Company, Appellant |
Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Appeal from the District Court, Payne County; Ray Lee Wall, Trial Judge.
Action by policyholders against insurance company for claimed benefits under policy and costs including attorneys' fees. After settlement of benefits, policyholders filed motion to settle attorneys' fees. From award of attorneys' fees, insurance company appeals.
AFFIRMED.
Clee Fitzgerald, Fitzgerald, Houston & Worthington, Stillwater, for appellees.
John N. Hermes, McAfee, Taft, Mark, Bond, Rucks & Woodruff, Oklahoma City, for appellant.
This appeal challenges correctness of the trial court's allowance of attorneys' fees as costs in an action brought by policyholders to recover benefits under a hospitalization insurance policy.
When defendant-insurance company denied benefits, plaintiffs-appellees employed an attorney, who filed an action for recovery of $953.30 in benefits and for costs of the action including attorneys' fees.
The insurance company eventually confessed the claim for benefits in an amount agreed upon by the parties. However, the matter of attorneys' fees was not disposed of. The record shows that plaintiffs' attorney testified that once plaintiffs' benefits were paid, "we would then file a motion to settle the attorneys' fees." Such a motion by plaintiffs was filed January 12, 1976. The court ruled on the motion allowing plaintiffs "a reasonable attorney fee" but reserved the amount for determination at a later hearing. Upon hearing, the trial court found that 36 O.S.1975 Supp. § 1219 was applicable, that a fee of $2,200 was reasonable, and that the fee was to be taxed as costs in the case. Judgment was entered accordingly. The insurance company appeals.
Appellant first contends:
"As a matter of law, an award of attorneys' fees is inappropriate and impermissible where there are no contractual provisions for attorneys' fees and where at the time this action arose, there were no statutory provisions for such fees."
Appellant correctly asserts that 12 O.S.1971 § 936 is inappli
cable to an action such as the instant one involving a contract of insurance. Globe & Republic Ins. Co. of America v. Independent Trucking Co., Okl., 387 P.2d 644 (1963).
Appellant also suggests that 36 O.S.1975 Supp. § 1219 is inapplicable because "the policy was entered into, the hospitalization occurred, and the claim was made and denied, all prior to the effective date of section 1219" the effective date being October 1, 1975. We do not agree with appellant's contention.
Title 36 O.S.1975 Supp. § 1219 provides:
In the case at bar, litigation ensued and appellees were the prevailing party, entitling them to a reasonable attorney's fee to be set by the court and taxed as costs against the party not prevailing.
Costs have been determined to be statutory allowances by a party to an action for his expenses incurred in the action. McAlester Urban Renewal Auth. v. Hamilton, Okl., 521 P.2d 823 (1974). The recovery of an attorney's fee taxed as costs must be premised upon either an agreement or a statute authorizing a fee. Recovery for such did not exist at common law. Wilson v. Hecht, Okl., 370 P.2d 28 (1962).
In our opinion, 36 O.S.1975 Supp. § 1219 is applicable to the case at bar. Though the contract was made and the cause of action arose prior to the effective...
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