Qualls v. Farmers Ins. Co., Inc.

Supreme Court of Oklahoma

Qualls v. Farmers Ins. Co., Inc.

1981 OK 61, 629 P.2d 1258, 1981 Okla. LEXIS 234

CourtSupreme Court of Oklahoma

DecidedJune 9, 1981

Docket52433

StatusPublished

Cited by24 cases

This text of 1981 OK 61 (Qualls v. Farmers Ins. Co., Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Qualls v. Farmers Ins. Co., Inc., 1981 OK 61, 629 P.2d 1258, 1981 Okla. LEXIS 234 (Okla. 1981).

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Opinions

LAVENDER, Justice:

This is an appeal from an order overruling a motion to assess attorney fees to the prevailing party pursuant to 36 O.S.Supp. 1977, § 3629 B.¹

The pertinent facts are as follows:

On September 20, 1975, appellee issued a fire insurance policy to appellants.

On April 25, 1976, a fire loss occurred. On February 24, 1977, appellants brought suit to recover under the policy.

On October 1, 1977, 36 O.S.Supp.1977, § 3629 B became effective.

[1259]*1259On March 29,1978, a judgment on a jury verdict was entered in favor of appellants.

The sole issue presented on appeal is whether that portion of 36 O.S.Supp.1977, § 3629 B relating to awarding attorney fees to the prevailing party is to be construed as operating retrospectively.

We deem the case of Phoenix Federal Savings and Loan v. Great Southwest Fire Insurance Company, Okl.App., 603 P.2d 356 (1979) to be determinative of the issue in this case, wherein the court quoted with approval from Cox v. American Fidelity Assurance Co., Okl.App., 581 P.2d 1325 (1977) as follows:

“The general rule that the statutes will be given prospective operation only [Benson v. Blair, Okl., 515 P.2d 1363 (1973)] does not apply to statutes affecting procedure. Oklahoma Water Resources Bd. v. Central Oklahoma Master Conservancy Dist., Okl., 464 P.2d 748 (1969). Taxing of attorneys’ fees as costs relates to a mode of procedure. Jeffcoat v. Highway Contractors, Inc., Okl.App., 508 P.2d 1083 (1972).”

Appellee contends Phoenix Federal, supra, is distinguishable because Jeffocat v. Highway Contractors, Inc., supra, therein cited construed 12 O.S.1971, § 936 which allows an attorney fee to the prevailing party “to be taxed and collected as costs,” whereas 36 O.S.Supp.1977, § 3629 B provides upon rendition of judgment “costs and attorney fees shall be allowable to the prevailing party.” However, we find the statutes semantically indistinguishable. In determining whether 36 O.S.Supp.1977, § 3629 B should be assigned retrospective or prospective effect the differences between attorney fee “to be taxed and collected as costs” (12 O.S.1971, § 936) and “costs and attorney fees shall be allowed to the prevailing party” (36 O.S.Supp.1977, § 3629 B) are not material differences. Jeffcoat and Phoenix Federal are therefore applicable here.

The ruling of the trial court is reversed and the cause remanded for determination by the trial court of a reasonable attorney fee to be allowed to appellants.

IRWIN, C. J., BARNES, V. C. J., and WILLIAMS, HODGES, SIMMS, DOOLIN and HARGRAVE, JJ., concur. OPALA, J., dissents.

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LAVENDER, Justice:

This is an appeal from an order overruling a motion to assess attorney fees to the prevailing party pursuant to 36 O.S.Supp. 1977, § 3629 B.¹

The pertinent facts are as follows:

On September 20, 1975, appellee issued a fire insurance policy to appellants.

On April 25, 1976, a fire loss occurred. On February 24, 1977, appellants brought suit to recover under the policy.

On October 1, 1977, 36 O.S.Supp.1977, § 3629 B became effective.

[1259]*1259On March 29,1978, a judgment on a jury verdict was entered in favor of appellants.

The sole issue presented on appeal is whether that portion of 36 O.S.Supp.1977, § 3629 B relating to awarding attorney fees to the prevailing party is to be construed as operating retrospectively.

We deem the case of Phoenix Federal Savings and Loan v. Great Southwest Fire Insurance Company, Okl.App., 603 P.2d 356 (1979) to be determinative of the issue in this case, wherein the court quoted with approval from Cox v. American Fidelity Assurance Co., Okl.App., 581 P.2d 1325 (1977) as follows:

“The general rule that the statutes will be given prospective operation only [Benson v. Blair, Okl., 515 P.2d 1363 (1973)] does not apply to statutes affecting procedure. Oklahoma Water Resources Bd. v. Central Oklahoma Master Conservancy Dist., Okl., 464 P.2d 748 (1969). Taxing of attorneys’ fees as costs relates to a mode of procedure. Jeffcoat v. Highway Contractors, Inc., Okl.App., 508 P.2d 1083 (1972).”

Appellee contends Phoenix Federal, supra, is distinguishable because Jeffocat v. Highway Contractors, Inc., supra, therein cited construed 12 O.S.1971, § 936 which allows an attorney fee to the prevailing party “to be taxed and collected as costs,” whereas 36 O.S.Supp.1977, § 3629 B provides upon rendition of judgment “costs and attorney fees shall be allowable to the prevailing party.” However, we find the statutes semantically indistinguishable. In determining whether 36 O.S.Supp.1977, § 3629 B should be assigned retrospective or prospective effect the differences between attorney fee “to be taxed and collected as costs” (12 O.S.1971, § 936) and “costs and attorney fees shall be allowed to the prevailing party” (36 O.S.Supp.1977, § 3629 B) are not material differences. Jeffcoat and Phoenix Federal are therefore applicable here.

The ruling of the trial court is reversed and the cause remanded for determination by the trial court of a reasonable attorney fee to be allowed to appellants.

IRWIN, C. J., BARNES, V. C. J., and WILLIAMS, HODGES, SIMMS, DOOLIN and HARGRAVE, JJ., concur. OPALA, J., dissents.

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1981 OK 61, 629 P.2d 1258, 1981 Okla. LEXIS 234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/qualls-v-farmers-ins-co-inc-okla-1981.

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