Southern Farm Bureau Casualty Insurance Co. v. Krouse

375 S.W.3d 763, 2010 Ark. App. 493, 2010 Ark. App. LEXIS 524
CourtCourt of Appeals of Arkansas
DecidedJune 16, 2010
DocketNo. CA 09-1264
StatusPublished
Cited by8 cases

This text of 375 S.W.3d 763 (Southern Farm Bureau Casualty Insurance Co. v. Krouse) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Southern Farm Bureau Casualty Insurance Co. v. Krouse, 375 S.W.3d 763, 2010 Ark. App. 493, 2010 Ark. App. LEXIS 524 (Ark. Ct. App. 2010).

Opinion

JOHN B. ROBBINS, Judge.

11 This appeal arises out of a jury trial in which the insured, appellee Rebecca Krouse, prevailed against her automobile insurance company, appellant Southern Farm Bureau Casualty Insurance Company (Farm Bureau), in its counterclaim for a declaratory judgment. Subsequent to the jury verdict in her favor, Krouse moved for attorney fees pursuant to Ark. Code Ann. § 23-79-209, which were granted in the amount of $22,162. It is the attorney-fee award that is the subject of appeal, not the underlying judgment. Farm Bureau contends that the award was in error because (1) only ArkCode Ann. § 23-79-208 applies, not § 23-79-209, so that no fees could be awarded; (2) if fees were appropriate, the amount of the award demonstrated an abuse of discretion. We affirm.

The material facts are not in dispute. The insured, appellee Krouse, was driving her truck when she was rear-ended by a car. The accident occurred on July 9, 2002, at an 1 ¡.intersection in Magnolia, Arkansas. The at-fault driver was college student Zachary Stumon, who was working as a pizza delivery man for Pizza Hut at the time. Stumon was driving a car owned by his roommate, Randy Givens. Krouse incurred substantial medical bills to treat her injuries, substantial property damage and auto rental costs, and some wage loss. Krouse sought to be made whole from Stumon and Givens; they settled with her for $25,000, the limits of American Home Assurance Company insurance coverage for bodily injury on the car owned by Givens.

Krouse contended she was out of pocket a greater sum, so she looked to Farm Bureau to make up the difference through her $50,000-limit under-insured motorist (UIM) provision. Farm Bureau willingly paid for repair of property damage to her truck and auto rental during repairs to the truck. It refused to pay for her medical bills and wage loss because it contended that Krouse failed to abide by certain notice provisions, in her policy and by statute, prior to settling with Stumon and Givens.

Krouse filed suit against Farm Bureau in circuit court in 2004. She sought her $50,000 limit for UIM, her costs, and attorney fees. Farm Bureau answered the complaint, denying all material allegations, and asserting separately a “Counterclaim For Declaratory Judgment.” The counterclaim asserted, among other things, that Krouse was not entitled to recover any UIM benefits because she failed to comply with the notice requirements. In response to the counterclaim, Krouse denied that she failed to comply with the notice requirements, and further alleged that Farm Bureau had actual notice of the pending settlement. Krouse also |salleged that Farm Bureau was not prejudiced because the tortfeasor (Stumon) had no ability to pay any judgment. In her answer to the counterclaim, she asked that it be dismissed and that she receive costs and attorney fees.

Krouse amended her complaint in July 2005 to add NPC International, Inc. d/b/a Pizza Hut as a defendant. Givens was dismissed as a party in March 2007. Stu-mon was dismissed as a party in December 2007. NPC was also dismissed in December 2007 because it was deemed to benefit from Stumon’s release with Krouse. American Home Assurance Company remained in the litigation due to allegations of misrepresentations that harmed Krouse. In early May 2009, Krouse voluntarily non-suited her claim against American Home. This left the only issues to be tried between Krouse and Farm Bureau regarding UIM benefits.

On May 12, 2009, the case was tried, and the jury found in Krouse’s favor and awarded her $30,500, representing her medical costs, wage loss, pain, suffering, and mental anguish. Because of the prior settlement, $25,000 was subtracted by the trial judge from the jury’s award, leaving a sum of $5,500 as her final net judgment. Krouse petitioned for $200 in costs and $22,162 in attorney fees billed by attorney Floyd Thomas, citing Ark.Code Ann. § 23-79-209. She attached affidavits of several attorneys attesting to the reasonableness of the requested fee, and detailed billing statements were attached. She asserted that the case had a five-year history, her experienced attorney reduced his $275 hourly rate to $200 for this fee request, it was only his and not the other attorney’s billed fees that she was requesting, and her attorney excised his time devoted to the other parties later dismissed.

|4Farm Bureau resisted the request, arguing that she was attempting to use an inapplicable statute; furthermore, if fees were warranted, the amount sought was excessive, and the billed amounts contained numerous errors that inflated the fee. Farm Bureau added that the actual judgment received by Krouse was $5,500, such that the fee award was nearly four times the recovery, and should be limited to a contingency fee of one-third of that amount. Farm Bureau pointed out that Krouse’s motion for fees stated that she had a one-third contingency fee contract with her attorneys. Krouse replied that attorney Thomas graciously redacted any fees earned by less-experienced associates, and he cut the firm’s whole fee of $48,693 down to his fee only.

The judge rendered an order granting Krouse’s request. The judge found that Ark. Code Ann. § 23-79-209 was applicable because Krouse successfully defended against Farm Bureau’s suit for declaratory judgment, even if presented as Farm Bureau’s counterclaim. The judge recited the factors required to be considered, enumerated in Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). The judge noted the following in his order:

The complex life of this lawsuit, the reasonable reduced fee requested, the insignificance of inaccuracies in the billing statements, the integral nature of the various added parties that were to benefit Farm Bureau, the failure to present evidence of the terms of a contingent-fee contract between Krouse and Thomas, the resolution of the case in her favor in spite of the tendency of this circuit court jury to award conservative amounts, and his considerable discretion.

Farm Bureau appeals the fee award to our court. The argument is divided into two basic assertions: (1) that it was error as a matter of law because Ark. Code Ann. § 23-79-209 did not apply; and (2) that this award demonstrated an abuse of discretion. First, we decide Rwhether an attorney fee is permissible on these facts under section 23-79-209. Farm Bureau contends that the correct statute, if any, would be section 23-79-208 because that statute applies to casualty insurance like this, where an insured files suit to force an insurer to pay benefits. Krouse responds in line with the trial judge’s opinion that section 23-79-209, by its plain wording, applies to any declaratory action, even if raised in a counterclaim by Farm Bureau.

The statute reads in relevant part at section (A):

In all suits in which the judgment or decree of a court is against a life, property, ... or liability insurance company ... in a suit for a declaratory judgment under the policy ... the company shall also be liable to pay the holder of the policy all reasonable attorney’s fees for the defense or the prosecution of the suit, as the case may be.

Here, we have a suit containing two causes of action: one for payment of an insurance claim, governed by Ark.Code Ann. § 23-79-208, and one for a declaratory judgment, governed by Ark.Code Ann. § 23-79-209.

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Cite This Page — Counsel Stack

Bluebook (online)
375 S.W.3d 763, 2010 Ark. App. 493, 2010 Ark. App. LEXIS 524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southern-farm-bureau-casualty-insurance-co-v-krouse-arkctapp-2010.