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Barney v. Safeco Insurance Co.3/22/1994
re of damages should control. Significantly, it has been distinguished or ignored in later North Carolina cases dealing with the same issue. Baxley, 334 N.C. at 9-10 (distinguished); Aills, 88 N.C. App. at 597 (ignored). The Baxley and Aills courts reached results similar to ours, and we find Moore unpersuasive.
Two issues remain. Barney argues that Safeco violated the Consumer Protection Act, RCW 19.86, by deducting the $5,000. Like the trial court, we hold to the contrary.
Relying on Olympic S.S. and Estate of Jordan v. Hartford Accident & Indem. Co., 120 Wash. 2d 490, 844 P.2d 403
(1993), Barney argues he is entitled to reasonable attorney's fees incurred "in connection with efforts to secure the full benefit of the underinsured motorists arbitration award." We agree that he is entitled to reasonable attorney's fees incurred to confirm the arbitration award and collect the $5,000 at issue in this appeal. We disagree that he is entitled to reasonable attorney's fees incurred for other purposes. Upon proper motion after remand, the trial judge shall determine recoverable fees incurred both in the trial court and in this court.
Reversed and remanded.
Disposition
Holding that the insurance policy did not require an offset for the medical benefits coverage, that the insurer had not violated the Consumer Protection Act, and that the insured was entitled to an attorney fee award, the court reverses the judgment and remands the case for further proceedings.
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