Morris v. Nationwide Ins. Co.
| Decision Date | 31 July 1986 |
| Docket Number | No. 85-598,85-598 |
| Parties | Mike MORRIS, Plaintiff and Appellant, v. NATIONWIDE INSURANCE COMPANY, Defendant and Respondent. |
| Court | Montana Supreme Court |
Erik B. Thueson, Great Falls, for plaintiff and appellant.
Jardine, Stephenson, Blewett & Weaver, William Jacobsen, Great Falls, for defendant and respondent.
Appellant, Mike Morris, appeals from the judgment of the District Court, Ninth Judicial District, County of Teton, awarding him attorney fees in the amount of $4,664.88 against respondent, Nationwide Insurance Company.
Morris brought this case to recover damages sustained as a result of Nationwide's violations of the Unfair Claim Settlement Practices Act, Sec. 33-18-201, et seq. MCA. The case is submitted to us by the parties with an agreed statement of facts pursuant to Rule 9(d), M.R.App.Civ.P.
The facts as agreed to by the parties are as follows: Morris brought an action to recover damages he alleged he sustained as a result of the negligence of Sun River Electric Co-op. He alleged that through the Co-op's negligence, a 7,200 volt line, owned and operated by the Co-op, started a fire on his ranch, causing the destruction of over 150 tons of hay, various fences, and trees, which were valuable windbreaks in his ranching operation.
The Co-op was insured for liability by Nationwide. Morris joined Nationwide to his action against the Co-op as a defendant, alleging that it had violated the Unfair Claim Settlement Practices Act, Sec. 33-18-201, et seq. MCA, in the manner in which it conducted settlement negotiations concerning his claim against the Co-op.
The District Court bifurcated the liability claim and the bad faith claim. The trial concerning the Co-op's liability commenced on June 25, 1984 and resulted in a jury verdict in favor of Morris in the amount of $19,994.64. A judgment was subsequently entered by the District Court for this amount, plus costs.
The trial of the third party bad faith action against Nationwide commenced on June 24, 1985. One of the issues submitted to the jury in the bad faith trial was whether Morris should be awarded the attorney fees he incurred in prosecuting his claims against the Co-op as an element of his compensatory damages. With regard to attorney fees, the District Court instructed the jury as follows:
If you determine that the defendant has violated its duty under the previous instruction just read to you, then you should award damages to the plaintiff for all losses proximately caused thereby. The measure of damages is the amount which will compensate for all the detriment proximately caused by said conduct, whether it should have been anticipated or not. Provided that you determine that the loss has been suffered by the plaintiff, said damages shall include: ...
Attorney fees and costs incurred in prosecuting the lawsuit against Nationwide's insured, Sun River Electric Coop.
No objection was made by Nationwide as to the portion of the instruction dealing with damages for attorney fees.
The jury determined that Nationwide had acted in bad faith under the provisions of the Unfair Claim Settlement Practices Act and awarded $42,500 in compensatory damages to Morris. The jury did not award Morris any punitive damages. The jury, however, did find that Nationwide's bad faith had proximately caused Morris to incur attorney fees and costs in pursuing the underlying liability action against the Co-op. Question no. 1 of the jury verdict states:
Should the plaintiff be awarded attorney fees and costs incurred in prosecuting his claim for damages resulting from the fire?
Answer :
Yes X No
If you have stated "yes" to the above question, then the Court shall assess appropriate attorney fees and costs in a separate hearing.
The hearing concerning attorney fees took place on July 31, 1985. At that time, the District Court took evidence in the form of testimony by Morris' attorney. On September 13, 1985, the District Court filed findings of fact and conclusions of law regarding the issue of attorney fees and costs to be awarded as compensatory damages. The District Court determined that Morris was entitled to $4,664.88 as compensatory damages for attorney fees incurred in the liability action. The District Court arrived at the above sum by reference to the contingent fee agreement entered by Morris and his attorney which provided that Morris' attorney, Erik B. Thueson, would receive 33 1/3 percent of all monies obtained for Morris by way of settlement and/or judgment as compensation for his services. An addendum was written on the agreement excepting the first $6,000.00 recovered from attorney fees.
At the hearing on attorney fees, Thueson presented evidence that 352 hours of attorney time were expended preparing and trying the underlying liability action against the Co-op. Thueson further testified that he considered $85.00 per hour to be a reasonable fee for this type of litigation. Thus, based on Thueson's testimony the District Court found reasonable attorney fees would have amounted to $29,992.25, if computed on an hourly basis.
Morris raises only one issue for our review: Whether the District Court erred in the manner in which it computed the amount of attorney fees awardable as compensatory damages.
Morris contends for a lodestar determination, that is, a fee based on reasonable hours expended times a reasonable hourly fee. It is well settled in Montana that where the subject of a contingent attorney fees contract does not offend public policy, it will be enforced according to its terms. Frank L. Pirtz Const., Inc. v. Hardin Town Pump (Mont.1984), 692 P.2d 460, 464, 41 St.Rep. 2366, 2371; Wight v. Hughes Livestock Co., Inc. (Mont.1983), 664 P.2d 303, 309, 40 St.Rep. 696, 702. Morris does not contend that the subject of his...
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Western Media, Inc. v. Merrick
...and Weinberg, for the proposition that the attorney's fees received in this case are unreasonable. In Morris v. Nationwide Insurance Company (Mont.1986), 722 P.2d 628, 43 St.Rep. 1363, cited by both parties, the prevailing attorney presented evidence that he had expended 352 hours of time o......
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Sampson v. National Farmers Union Property
...the UTPA, and that attorney fees constitute such damages. ¶ 16 Claimants rely in part upon our decision in Morris v. Nationwide Ins. Co., 222 Mont. 399, 722 P.2d 628 (1986), contending it supports their contention that attorney fees qualify as damages in bad faith actions. However, it is im......