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Sprague v. California Pacific Bankers & Insurance Ltd.12/27/2001
nce, Inc.
On July 6, 1999, the court entered its Order Regarding Attorneys Fees and Costs, in relevant part, as follows:
The court is required to identify the principal issues raised by the pleadings and proof in a particular case, and then determine on balance, which party prevailed on the issues. Fought & Co., Inc. v. Steel Eng., 87 Haw. 37 (1998).
In this case, there were three Counts in the Complaint. Count I in negligence; Count II in contract alleging misrepresentation, bad faith and fraud; Count III in contract alleging breach of the insurance contract. Prior to trial the court granted a directed verdict with respect to [Tokunaga]. The jury's verdict exonerated [Sally Nottage] and [Insurance Resources] with respect to Count I in negligence. The Plaintiffs obtained an award against [James Nottage] and [Nottage Insurance] for $4,245 each on Count I in negligence. The remaining counts II and III in contract, the jury found for Plaintiffs against Kam, [Aviation Insurance] and [California Pacific].
Therefore, the Plaintiffs, . . . are the prevailing parties in Count I, negligence against [James Nottage] and [Nottage Insurance].
While at the same time, . . . [Sally Nottage], [Insurance Resources] and [Tokunaga] are the prevailing parties in Count I, negligence against Plaintiffs, . . . .
ITS IS HEREBY DIRECTED AND DECREED THAT:
Plaintiffs . . . are not entitled to attorneys fees because . . . ttorneys fees are not recoverable in negligence actions. . . .
[Tokunaga] is the prevailing party with respect to all Counts in the Complaint . . . . [Tokunaga] is allowed attorney fees for Counts II and III pursuant to Haw. Rev. Stat. Sec. 607-14. [Sally Nottage] and [Insurance Resources] are the prevailing parties in Count I in negligence against Plaintiffs,
With respect to costs, [Tokunaga] is entitled to costs because he is the prevailing party. [Sally Nottage] and [Insurance Resources] are the prevailing parties in the negligence counts, and they are entitled to costs. Plaintiffs prevailed in the negligence action against [James Nottage] and [Nottage Insurance] but Plaintiffs' judgment is less favorable than an offer of judgment by Defendants. Therefore, pursuant to Haw. Rule of Civ. Proc. 68[,] Plaintiffs are entitled to costs up to the offer of judgment from [James Nottage] and [Nottage Insurance] and [James Nottage] and [Nottage Insurance] are entitled to costs after the offer of judgment.
The Plaintiffs and Defendants shall submit not later than July 15, 1999, their attorneys fees and costs apportioning their attorneys fees and taxable costs as to Counts I, II and III, and apportion their attorneys fees and costs as to each party, specifically to those where they prevailed. Taxable costs shall be submitted to the court instead of the clerk. Opposition to submitted fees and taxable costs shall be filed not later than July 25, 1999. The Court will then issue an Order determining reasonable fees and taxable costs.
"Ordinarily, attorney fees cannot be awarded as damages or costs unless so provided by statute, stipulation or agreement." Weinberg v. Mauch, 78 Hawaii 40, 53, 890 P.2d 277, 290 (1995) (citation omitted). Under HRS ยง 607-14 (2000), attorney fees may be awarded in three types of cases: (1) in all actions in the nature of assumpsit; (2) in all actions on a promissory note; and (3) in contracts in writing that provide for an attorneys' fee. Eastman v. McGowan, 86 Hawaii 21, 31, 946 P.2d 1317, 1327 (1997). "Assumpsit" is "a common law form of action which allows for recovery of damages for the non-performance of a contract, either express or implied, written or
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