Hegler v. Gulf Ins. Co., 20659
| Citation | 270 S.C. 548,243 S.E.2d 443 |
| Decision Date | 11 April 1978 |
| Docket Number | No. 20659,20659 |
| Court | United States State Supreme Court of South Carolina |
| Parties | James Mack HEGLER, d/b/a Hegler's Motor Mart, Appellant, v. GULF INSURANCE COMPANY, Respondent. |
Robert K. Folks and Thomas W. Thomas, of Thomas, Rushing, Goldsmith & Folks, Lancaster, for appellant.
Alva M. Lumpkin of Lumpkin & Bowman, Columbia, for respondent.
The question at issue in this appeal is whether an insured is entitled to recover attorney's fees incurred by him in the successful defense of a declaratory judgment action brought by the insurer in an effort to relieve itself of coverage under an automobile liability insurance policy.
Appellant, Hegler, was insured under a general automobile liability insurance policy issued to him by respondent, Gulf Insurance Company, under which respondent obligated to defend appellant against any suit seeking damages on account of bodily injury or property damage. While the policy was in force, the vehicle of appellant struck a tree resulting in injuries to a passenger, for which an action was filed against appellant. Subsequently, respondent notified appellant that defense of the action for damages had been undertaken with a reservation of rights under the policy of insurance.
After taking the necessary steps to defend appellant in the suit for damages, respondent notified appellant that it would bring a declaratory judgment action to determine liability under the policy of insurance and advised him to obtain his own attorney to represent him in the forthcoming action. Appellant accordingly retained independent counsel to represent him; and that action was ultimately decided in appellant's favor, upon a finding that coverage existed under the policy. Thereafter, respondent settled the action for damages, which was dismissed with prejudice.
After respondent refused appellant's demands for payment of his attorney's fees incurred in successfully defending the declaratory judgment action, appellant began this action against respondent to recover such fees. The lower court denied recovery and this appeal followed.
As a general rule, attorney's fees are not recoverable unless authorized by contract or statute. No right to recover is here asserted under any statute. Appellant then must recover, if at all, upon some contractual right.
The lower court was in error. Counsel fees should have been allowed for the defense of the declaratory action brought by respondent to avoid coverage under the policy. The applicable policy provisions require the respondent (1) to pay on behalf of appellant all sums which appellant shall become legally obligated to pay as damages because of bodily injury or property damage, and (2) "to defend any suit against the insured (appellant) seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent."
While respondent agreed, under a reservation of rights, to defend the action for damages brought against appellant, it simultaneously brought the declaratory judgment action seeking a determination that it was not liable under the policy or obligated to defend. Appellant was, therefore, forced to employ counsel to defend against respondent's denial of any obligation to continue the defense of the damage action.
The declaratory judgment action established respondent's obligation under the policy to defend the action...
To continue reading
Request your trial
-
Kremers-Urban Co. v. American Employers Ins. Co.
...insurer's conduct in refusing to defend its insured to be a contractual basis for the award of attorney's fees. Hegler v. Gulf Insurance Co., 270 S.C. 548, 243 S.E.2d 443 (1978); Security Mut. Casualty Co. v. Luthi, 303 Minn. 161, 226 N.W.2d 878 (1975); Cohen v. American Home Assurance Co.,......
-
Williamson v. Middleton
...S.E.2d 659, 660 (1993) (citing Baron Data Sys., Inc. v. Loter, 297 S.C. 382, 383 377 S.E.2d 296, 297 (1989); Hegler v. Gulf Ins. Co., 270 S.C. 548, 548, 243 S.E.2d 443, 444 (1978)); accord Seabrook Island Property Owners' Ass'n v. Berger, 365 S.C. 234, 238, 616 S.E.2d 431, 434 (Ct.App. 2005......
-
Acmat v. Greater New York Mut. Ins. Co., 17740.
...to obtain the full benefit of the insurance contract" in both duty to defend and duty to indemnify cases); Hegler v. Gulf Ins. Co., 270 S.C. 548, 551, 243 S.E.2d 443 (1978) (successful insured may recover fees from declaratory judgment action even if insurer has defended underlying action p......
-
POTOMAC RES. CLUB v. WESTERN WORLD INS.
....... Oliver T. Carr Co. v. United Techs. Communications Co., 604 A.2d 881, 883 (D.C. ...267] 357 P.2d 519 (Or. 1960). . South Carolina: Hegler v. Gulf Ins. Co., [270 S.C. 548] 243 S.E.2d 443 (S.C. 1978) (fees ......