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Hamilton Mut. Ins. Co. v. Perry11/21/1997
Per Curiam.
This case is on appeal from a declaratory judgment of the Ottawa County Court of Common Pleas.
This case began as a declaratory judgment action filed by appellant, Hamilton Mutual Insurance Company, in the Ottawa County Court of Common Pleas. Appellant contended that it did not owe appellee, Leo E. Perry, Jr., any insurance coverage because appellee did not give appellant timely notice of an accident that happened in his home resulting in injury to his son. Appellee responded that when the accident happened he had no liability to his minor son because parental immunity for tort actions still existed. He argued that he gave prompt notice to appellant after parental immunity was abolished by the Supreme Court of Ohio and his son filed a personal injury suit. He stated that under the circumstances he had complied with the requirements of the contract.
The trial court ruled that appellant owed no duty to appellee to provide insurance coverage. The trial court reasoned that appellee did not present sufficient evidence to show that appellant was not prejudiced by receiving notice of the accident several years after the accident. On appeal, this court reversed and remanded the case. This court ruled that appellee had presented sufficient evidence to show a genuine issue of material fact remained in question regarding whether appellant was prejudiced by the late notice.
On remand, after further evidence was presented by both parties, the trial court ruled that appellant was not prejudiced by the late notice from appellee. The trial court ruled that appellant did owe insurance coverage to appellee and awarded appellee attorney fees. Appellant filed an appeal from the ruling of the trial court and presented several assignments of error. Prior to oral argument, the parties filed a joint stipulation in this court, stating:
"1. Leo Perry and Hamilton Mutual agree that the fee arrangement as between Leo Perry and his counsel, W. Patrick Murray, which is outlined on pages 20 and 21 of Judge Smith's January 23, 1997 Judgment shall not be smatter of review in the course of the Court of Appeals' hearing of Case No: 97-OT-010.
"2. The issues on appeal in Case No: 97-OT-010 shall, by agreement of the parties, be limited to the following:
"a. Whether the trial court's finding of bad faith was improper and/or erroneous.
"b. Whether the legal fees granted by the trial court were reasonable."
Following oral argument, appellee, Leo Perry, filed a partial motion to dismiss.
Appellee asks this court "to dismiss the plaintiff-appellant's assignment of error relating to the subject of bad faith." Appellee states in his motion that a settlement has been reached with appellee that ends the need for this court to consider the first issue presented for review: the trial court's finding with regard to bad faith. Appellee has not opposed the partial motion to dismiss; therefore, we find it well taken. The partial motion to dismiss is granted.
The only issue remaining for review on appeal, as stipulated by the parties, is raised in appellant's Assignment of Error E, which provides: "THE TRIAL COURT ERRED IN GRANTING ATTORNEYS FEES AT THE BILLABLE HOURLY RATE OF $400.00." The parties agreed in the trial court that the number of hours listed by appellee's attorneys for work performed on this case was reasonable. Appellant argued, however, that the hourly rate charged by appellee's attorneys, $350 an hour, was not reasonable. The trial court considered evidence from both parties and ruled that appellee's attorneys were entitled to $400 an hour for their fees. Appell
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