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Farmers Insurance Exchange v. Tucker11/23/2005
aining issues between the parties should be tried in Idaho because the case involved the interpretation of an insurance policy issued in Idaho to Idaho insureds and that most of the likely trial witnesses on the damage issue are from Idaho. However, when one takes a closer look at what remains to be decided in the case, it boils down to the question of how much FIE must pay under its policy. While the district court allowed FIE to amend in order to seek a determination of whether FIE is liable for damages under its policy and, if so, to whom it must pay, those questions need not be litigated in the Idaho action.
When asked at oral argument what questions remained to be litigated in the Idaho action, FIE's counsel responded, "I don't think there is anything remaining to be litigated in Idaho because there is no coverage issue. It's just a question of determining what is the amount due under the policy." Later he stated, "There is no liability or negligence issue. It's purely a question of how much damages are recoverable under the facts of the case . . ." When asked how he would suggest the trial court handle the case, he stated, "I would urge the trial court to litigate the question of damages without advising the jury of what other insurance settlements exist or don't exist. . . .Let them return a verdict of whatever the amount is . . . ." The judge would take the verdict information and then credit the previous recoveries against the verdict award up to the policy limit of one million dollars.
There is no complicated question to answer with regard to interpretation of the policy. It appears from the comments of counsel that it would merely take a ministerial calculation to determine what, if anything, Tucker and Hoctor are entitled to after damages are determined. In his initial decision on the motion to compel arbitration, the district court noted that the Decedent's estate anticipated collecting the insurance proceeds, which would then be distributed from the estate. Thus, the question of who receives any money under the policy will likely be determined in the estate proceeding, rather than in this case. The only issue of substance to be determined is the factual question as to the amount of damages, a question which is pending in the first-filed regular action in the state of Montana. The district court's determination, therefore, is certainly reasonable under these circumstances. We will not disturb it on appeal.
B. Is FIE Liable for Attorney Fees on Appeal?
Tucker and Hoctor claim an entitlement to attorney fees under I.C. ยง 12-121, contending that FIE's appeal was brought frivolously, unreasonably, or without foundation. They cite Durrant v. Christensen, 117 Idaho 70, 74, 785 P.2d 634, 638 (1990) for the proposition that an award of fees on appeal is appropriate "when we are left with an abiding belief that the appeal has been brought or defended frivolously, unreasonably, or without foundation." However, this Court is not left with the abiding feeling that FIE acted in such a fashion. While it did not prevail on appeal, its arguments were well presented and it cannot be said that they were without some merit.
VI. CONCLUSION
The decision of the district court is affirmed. Costs are awarded to Tucker and Hoctor but they are awarded no attorney fees.
Chief Justice SCHROEDER and Justice TROUT, CONCUR.
Justice EISMANN, concurring in part and dissenting in part.
I concur in Parts I., II., and III.A. of the majority opinion.
I dissent as to part
III. B.
At the time FIE moved to amend its complaint to allege a claim for declaratory judgment against Tuck
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