Griggs v. Safeco Insurance Co. of America

654 P.2d 378, 103 Idaho 790, 1982 Ida. LEXIS 305

• Court: Idaho Supreme Court
• Decided: November 17, 1982
• Docket: 13722
• Status: Published

Opinions

PER CURIAM:

Appeal is taken from the trial court’s decision that the insurer is not entitled to indemnification from an uninsured driver for attorney fees paid to the insured motorist.

This appeal arose from an action originally initiated by Ernest and Eileen Griggs, inactive parties to this appeal, against Safe-co Insurance Company. The original plaintiff, Eileen Griggs, made timely demand for $10,000 from her insurer, Safeco Insurance Co., the defendant and third party plaintiff-appellant in this action. Griggs sought recovery under the uninsured motorist provision of her insurance policy¹ for injuries suffered on December 21, 1975, as a result of a collision with an uninsured motor vehicle owned and operated by Elmer Ahrendsen, the third party defendant and respondent herein. Safeco, claiming that Griggs was responsible for her own injuries, refused payment, and Griggs filed suit directly against Safeco seeking recovery for all sums she was entitled to recover as damages from Ahrendsen. The trial court stated that “there is no evidence that Safeco exercised its right [under the policy] to determine its liability to Griggs through arbitration.” Instead, Safeco answered Griggs’ complaint and filed a third party complaint against Ahrendsen, the uninsured motorist, alleging that if Safeco was liable to Griggs, then Ahrendsen was liable for indemnity or contribution for all or part of Griggs’ claim against Safeco. Ahrendsen answered and cross claimed against Griggs, alleging that the sole cause of the accident was Griggs’ negligence.

At the conclusion of the trial, during which the degree of negligence attributable to Griggs and Ahrendsen was litigated, the jury, by way of special verdict, found that Ahrendsen was 54% negligent, that Griggs was 46% negligent, and that Griggs’ damages amounted to $1,241.45. The trial court ordered that the plaintiff recover from Safeco the sum of $670.38, the amount of damages attributable to Ahrendsen, together with costs and disbursements, including attorney fees under I.C. § 41-1839, in the sum of $4,965.38.² Safeco satisfied the judgment and then moved the court to enter a judgment against the third party defendant Ahrendsen in the sum of $5,635.58 on the ground that Safeco was entitled to a judgment over and against Ahrendsen. The trial court determined that Safeco had a right of indemnity against Ahrendsen for the $670.38, but concluded that shifting the burden of Griggs’ judgment for costs and attorney fees, from Safeco to Ahrendsen was not justified under the facts of this case. We agree.

The sole question presented on appeal is whether Safeco is entitled to indemnification for the attorney fees and costs incurred by Griggs and assessed by the trial court against Safeco under I.C. § 41-1839.

As pointed out by Safeco, the general rule is that implied indemnity is an equitable principle based upon the general theory that one compelled to pay for the damage caused by another should be able to seek recovery from that party. May Trucking Co. v. International Harvester Co., 97 Idaho 319, 543 P.2d 1159 (1975). Being an equitable principle, the trial court is vested with discretion in determining the “equities” between the parties, including the reasonableness of Safeco’s actions in defense of its own insured’s action. We have reviewed the record and cannot conclude that the trial court abused its discretion in limiting Safeco’s indemnity to the $670.38 damage judgment, to the exclusion of Safeco’s costs and attorney fees.

Judgment affirmed.

1 . Although the insurance policy itself is not before this Court, the record shows that the uninsured motorist provision is as follows: “[Safeco agrees t]o pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury’ sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured motor vehicle; ... determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and SAFECO or, if they fail to agree, by arbitration.”

2 . “41-1839. ALLOWANCE OF ATTORNEY FEES IN SUITS AGAINST INSURERS. — (1) Any insurer issuing any policy, certificate or contract of insurance, surety, guaranty or indemnity of any kind or nature whatsoever, which shall fail for a period of thirty (30) days after proof of loss has been furnished as provided in such policy, certificate or contract, to pay to the person entitled thereto the amount justly due under such policy, certificate or contract, shall in any action thereafter brought against the insurer in any court in this state for recovery under the terms of the policy, certificate or contract, pay such further amount as the court shall adjudge reasonable as attorney’s fees in such action.

“(2) In any such action, if it is alleged that before the commencement thereof, a tender of the full amount justly due was made to the person entitled thereto, and such amount is thereupon deposited in the court, and if the allegation is found to be true, or if it is determined in such action that no amount is justly due, then no such attorney’s fees may be recovered.

Whether the trial court properly awarded attorney fees under I.C. § 41-1839 was not an issue raised on appeal; therefore, we make no decision in that regard. See, e.g., Halliday v. Farmers Ins. Exchange, 89 Idaho 293, 404 P.2d 634 (1965); Associates Discount Corp. of Idaho v. Yosemite Ins. Co., 96 Idaho 249, 526 P.2d 854 (1974).