 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Smith v. USAA Property and Casualty Insurance3/16/1999
) the insurance company fails to pay an amount justly due under the policy within thirty days of such proof of loss; and (3) the insured thereafter is compelled to bring suit to recover for his or her loss. Walden v. Nationwide Ins. Co., 131 Idaho 18, 21, 951 P.2d 949, 952 (1998) (citing Hansen v. State Farm Mut. Auto. Ins. Co., 112 Idaho 663, 671, 735 P.2d 974, 982 (1987)).
Although Smith was not the prevailing party as to all of the claims before the district Judge, she did prevail with respect to the declaratory judgment and the breach of contract claim. Pursuant to Rule 54(d)(1)(B), a trial court may find that a party prevailed in part, and apportion costs and attorney fees appropriately. Therefore, the district Judge did not abuse his discretion in determining that because Smith was the prevailing party as to one of the counts in her complaint, she satisfied the requirements of Rule 54(e)(1). However, Smith has not satisfied the requirements for an award of attorney fees under I.C. § 41-1839(1). Smith has not alleged nor provided any evidence that USAA did not pay her medical expenses and property damage within thirty days of her proof of loss. Rather, Smith attempts to extend the language of section 411839(1) to cover her present situation; that is, her placing a portion of her settlement in trust and her filing suit to prevent her insurance company from exercising its claimed right to subrogation. The language of I.C. § 41-1839(1) simply does not support Smith's interpretation. Thus, the district Judge did not err in denying Smith attorney's fees under I.C. § 41-1839.
IV.
USAA IS NOT ENTITLED TO ATTORNEY'S FEES UNDER I.C. § 12-121.
USAA claims it is entitled to an award of attorney's fees on appeal pursuant to I.C. § 12121. An award of attorney fees is appropriate if the Court is left with "the abiding belief that the appeal was brought, pursued or defended frivolously, unreasonably or without foundation." Balderson v. Balderson, 127 Idaho 48, 54, 896 P.2d 956, 962, cert. denied, 116 S. Ct. 179 (1995) (citing Minich v. Gem State Developers, Inc., 99 Idaho 911, 918, 591 P.2d 1078, 1085 (1979)). We decline to award attorney fees to USAA on appeal. Although Smith's argument before this Court regarding the district Judge's abuse of discretion in striking portions of the expert opinion and denying the motion to reconsider was not persuasive, it was not unreasonable or frivolous.
V.
CONCLUSION
For the reasons stated above, the district Judge's ruling as to the claims for bad faith and attorney fees under I.C. § 41-1839 are affirmed. Costs but not attorney fees are awarded to USAA on appeal.
Justices SCHROEDER, WALTERS and Justice Pro Tem JOHNSON, CONCUR.
Justice SILAK, CONCURRING IN THE RESULT.
Page 1 2 3 4 Idaho Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|