Lewis v. United States

327 F. Supp. 561, 1971 U.S. Dist. LEXIS 14289

• Court: District Court, S.D. California
• Decided: March 8, 1971
• Docket: Civ. No. 69-262-M
• Status: Published

Opinion

ORDER

WILLIAM D. MURRAY, Senior District Judge.

This action arises under Title 38 U. S.C.A., 784 ff., for the purpose of setting aside a designation of beneficiary on two National Service Life Insurance Policies. The defendants have filed a cross complaint asking the court to deny plaintiffs any relief and to grant them reasonable attorney’s fees from the plaintiffs in case they are successful. The plaintiffs have moved the court to dismiss the Cross Complaint.

The subject of attorney’s fees as it applies to this Title is fully covered in Section 784(g).

“Whenever a judgment or decree shall be rendered in an action brought under the provisions of this section, the court, as a part of its judgment or decree, shall determine and allow reasonable fees for the attorneys of the successful party or parties and apportion same if proper, said fees not to exceed 10 per centum of the amount recovered and to be paid by the Veteran’s Administration out of the payments to be made under the judgment or decree at a rate not exceeding one-tenth of each of such payments until paid; * * *"

It should also be noted that attorney’s fees can ordinarily be obtained by a prevailing party against an adverse party only by virtue of a statute, a rule of court, or the provisions of a written agreement. Standard Accident Ins. Co. of Detroit, Mich. v. Hull et al., 91 F.Supp. 65 (S.D.Cal.1950). Attorney’s fees are not recognized as recoverable damages unless authorized by statute or contract. Paper Makers Importing Co. v. City of Milwaukee, 165 F.Supp. 491 (E.D.Wis.1958).

Here the court knows of no exception that would allow an action for the recovery of attorney’s fees in this type of case.

Therefore, it is ordered and this does order that the said motion to dismiss the cross complaint be and the same is hereby granted.