Perkins v. American Mutual Fire Insurance Co. , 4 N.C. App. 466 ( 1969 )

167 S.E.2d 93 (1969) 4 N.C. App. 466

Lee PERKINS
v.
AMERICAN MUTUAL FIRE INSURANCE COMPANY.

No. 6927SC152.

Court of Appeals of North Carolina.

April 30, 1969.

Mullen, Holland & Harrell, by Philip V. Harrell, Gastonia, for plaintiff appellant.

Hollowell, Stott & Hollowell, by Grady B. Stott, Gastonia, for defendant appellee.

BROCK, Judge.

Counsel for plaintiff appellant has abandoned in oral argument any claim for attorney fees in the action against the Commissioner of Motor Vehicles. Therefore the sole question to be determined by this Court is whether the trial judge erred in concluding as a matter of law that plaintiff is not entitled to recover attorney fees incurred by him in the prosecution of this action.

Plaintiff does not cite, and our research has failed to disclose, any case in North Carolina allowing the recovery of attorney fees in an action against an insurance company to determine coverage under a policy. It is the contention of plaintiff that the counsel fees should be recovered as an element of damage for breach of the insurance contract by defendant in refusing to defend plaintiff and pay the judgment and expenses. However, it is not contended by plaintiff that the contract made provision for recovery of attorney fees in this instance.

The general rule is that, in the absence of any contractual or statutory liability therefor, attorney fees and expenses of litigation incurred by the plaintiff or which plaintiff is obligated to pay in the litigation of his claim against the defendant, are not recoverable as an item of damages, either in a contract or a tort action. The reason for the rule is that these expenses are not the legitimate consequence of the tort or breach of contract complained of, and to allow these expenses to the plaintiff, which are never allowed to a successful defendant, would give the former an unfair advantage in the contest. Where a statute provides that the successful party may be allowed certain sums, termed "costs," by way of indemnity, for his expenses in the action, it is not in the power of the courts or juries to increase the allowance fixed by statute. 22 Am.Jur.2d, Damages, § 165, p. 234.

"The right to recover attorneys' fees from one's opponent in litigation as a part of the costs thereof does not exist at common law. Such an item of expense is not allowable in the absence of a statute or rule of court or in the absence of some agreement expressly authorizing the taxing of attorneys' fees in addition to the ordinary statutory costs." 20 Am.Jur.2d, Costs, § 72, p. 58.

While at one time the allowance of certain fixed attorney fees as a part of the costs of litigation was a policy in this State, statutes allowing this were repealed and nonallowance of counsel fees was deliberately adopted as the policy in 1879. Wachovia Bank & Trust Co. v. Schneider, 235 N.C. 446, 70 S.E.2d 578. This policy, except as modified by the provisions of G.S. §§ 6-21, 6-21.1 and 6-21.2, has prevailed in this State since that date. "Except as otherwise provided by statute, G.S. § 6-21, attorneys' fees are not now regarded as a part of the court costs in this jurisdiction." Wachovia Bank & Trust Co. v. Schneider, supra.

It is the opinion of this Court, and we so hold, that our statutes, G.S. §§ 6-21, 6-21.1 and 6-21.2 do not authorize the allowance of attorney fees as a part of the court costs in cases such as the one at bar, and that this case does not come within their provisions.

Affirmed.

CAMPBELL and MORRIS, JJ., concur.