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Badillo v. Mid Century Insurance Co.6/21/2005
ma Farm Bureau Mutual Ins. Co., 2000 OK 55, n. 17, 11 P.3d 162 [generally recognizing Taylor's holding of § 3629(B)'s applicability to tort-related theory of liability - other than in uninsured or underinsured motorist (UM/UIM) benefit insurance cases - where core element of damages sought and awarded consists of the insured loss, i.e., policy benefits]. Here, insured argues, in effect, the core element of the damages sought and awarded in his tort suit against insurers for breach of the implied duty of good faith and fair dealing was the insured loss or policy benefit of having insurers protect him against exposure to an excess verdict. Insured's argument is flawed and Taylor's core element principle as to § 3629(B)'s applicability cannot be stretched to encompass within its meaning of insured loss or policy benefit such a claim. Rather than having as its core element the insured loss or monetary policy benefit, the primary focus and heart of insured's suit against insurers involved his attempt to recover uninsured financial losses not covered by the policy of insurance and to recover damages for embarrassment, and mental pain and suffering.
Here, the insured loss was not the "core element" of insured's tort suit against insurers nor was the $10,000.00 liability policy limit part of insured's recovery via the jury verdict. After the excess verdict was rendered against insured in the Smith suit as a result of the vehicular/pedestrian collision, insurers again tendered the policy limits to Smith, which was accepted. This reduced the Smith judgment against insured in such amount. Therefore, § 3629(B) does not support a recovery of attorney fees by insured and the trial court correctly so held.
Insured's claim to a common law entitlement to attorney fees as an element of his damages is also faulty. This Court has determined that an insured is not entitled to recover attorney fees as a matter of course as part of a common law element of damages in a suit for breach of the implied duty of good faith and fair dealing. See Barnes v. Oklahoma Farm Bureau Mutual Ins. Co., 2000 OK 55, at 45-54, 11 P.3d at 178-182. We have been provided no viable rationale by insured to deviate from our Barnes' holding in such regard in the circumstances shown in this case merely because it involves the liability aspects of an automobile insurance policy, rather than the UIM or UM benefits thereof. Thus, the trial court did not err in denying attorney fees to insured based on his common law entitlement theory. As aptly recognized by the Court of Civil Appeals over thirty (30) years ago, in the absence of an applicable contractual provision or statute " attorney's fee for representing the insured in this [type of] case is not an item of damage but is simply an expense of litigation as it is in any other case where a suit is necessary in order to collect damages because of the defendant's wrong." Davis v. National Pioneer Ins. Co., 1973 OK CIV APP 9, 515 P.2d 580, 584.
PART IX. THE TRIAL COURT DID NOT ERR IN DENYING INSURED PREJUDGMENT INTEREST
Insured seeks prejudgment interest under three statutory alternatives. One of the alternatives rests on § 3629(B). No prejudgment interest is recoverable under § 3629(B) for the reasons stated in the immediately preceding part of this opinion, i.e., the core element of the recovery he sought and that was awarded to him via the jury verdict (upon which the judgment under review was based) did not consist of the insured loss.
Insured also attempts to statutorily anchor entitlement to prejudgment interest as to the entirety of the $2,200,000.00 judgment on 12 O. S. 2001, § 727(E). This provision provides in pertinent part:
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Oklahoma Personal Injury Attorneys
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