Oliver's Sports Center, Inc. v. National Standard Insurance Co. ( 1980 )

OPALA, Justice,

concurring:

In an action against the insurer to recover for loss by fire the jury’s verdict in favor of the insured was for $160,000.00, the maximum coverage under the policy, and for $20,000.00 in damages for bad-faith denial of the claim. In a post-verdict proceeding before the judge sitting without a jury the insured \yas allowed — under 36 O.S.Supp. 1977 § 3629B — an additional recovery in counsel fees of $60,000.00. The appeal seeks corrective relief from the judge’s allowance of counsel fees. The record presented for review does not include a transcript of trial proceedings which culminated in the jury verdict. The intensity of the forensic combat waged between these adversaries in pre-verdict stages is almost totally obscured from our judicial view.

The statute under which recovery of counsel fee was effected — 36 O.S.Supp.1977 § 3629B — (a) provides that upon a judgment in favor of the “prevailing party” in an action to collect upon a rejected proof-of-loss claim “costs and attorney fees shall be allowable” and (b) defines the term “prevailing party”.

Whenever in a common-law action triable to a jury the statute authorizes counsel fee to be awarded to the prevailing party, either as an additional element of recoverable damage or as a taxable item of costs, the amount of the fee so to be allowed is a question of fact for submission to the trier in the same manner as any other fact arising in the case.¹ This principle, first announced by the Kansas court in Merrill,² was expressly adopted by this court in Holland Banking Co. v. Dicks.³ It governs here. The counsel-fee issue was one for the jury. Since by its voluntary submission to the court, the parties — either as a conscious strategy choice or otherwise — waived their right to trial by jury, the case stands before us for review by the standards applicable to common-law proceedings in error.⁴

Whenever a jury is waived and a cause, or an issue, is tried to the court, the trial court’s resolution of facts has the very same force and effect as that which, is to be accorded a verdict of a properly-instructed jury. If the resolution is effected by a general finding, that finding will be deemed to comprise within it a favorable decision upon all the essential elements necessary to support it. The trial judge’s verdict so rendered, which is conclusive in law upon the Supreme Court with respect to all disputed issues of fact resolved in the case, may not be disturbed on review if there is any competent evidence which reasonably tends to support it.⁵

The verdict upon the amount of counsel fee is not without support in competent evidence. It is also free from error of law as it was presumably rendered by a properly-instructed jury. The standard by which to gauge the correctness of the decision is neither “abuse of discretion” nor “reasonableness”. The verdict must stand or fall on whether it is “excessive” or supported by competent evidence. No one contends that there is an absence of competent proof to justify the judge’s verdict. Rather, the argument, as I divine it, is that the verdict is “excessive” because the judge applied impermissible private-contract standards as distinguished from the more objective fair-market value of legal services.

The record does not demonstrate clearly that private-contract standards governed the judge’s decision. I am hence obliged to test the “excessiveness” of the verdict by common-law standards. It is so “flagrantly outrageous and extravagant as to clearly show passion, partiality, prejudice or corruption”?⁶ An affirmative answer to the question so posed would not be legally correct in view of the careful findings and the evidence adduced.

I am hence powerless to re-examine the decision regardless of what my personal judgment may be with respect to the size of the award made. Were I sitting as a lone chancellor in trial or in review of an equity decree, I would subject the facts to careful scrutiny or re-examination, as the case may be. I might arrive at some other figure, but here the applicable law does not authorize me to stretch the scope of affordable review as far as needed to give the insurer the relief it seeks.

The credibility of proof that was adduced before the trial judge is not subject to re-appraisal on appeal. Nor can this court re-weigh the evidence to determine de novo where the preponderance may lie. The trial judge’s decision rests on competent evidence. Gauged by the applicable common-law standards of review, the amount awarded is not excessive. Because I am powerless to readjudicate the fact issues in the case and the decision under consideration is the functional equivalent of a legally unassailable jury verdict, I join in affirming the order allowing counsel fees.

1 . 12 O.S.1971 § 556; Missouri Pac. Ry. Co. v. Merrill, 40 Kan. 404, 19 P. 793 [1888],

2 . Supra note 1.

3 . 67 Okl. 228, 170 P. 253, 256 [1918],

4 . 12 O.S.1971 § 591; First State Bank of Noble v. McKiddy, 206 Okl. 57, 240 P.2d 1103 [1952]; Kansas, O. & G. Ry. Co. v. Searcy, 206 Okl. 1, 240 P.2d 440 [1952]; Givens v. Western Paving Co., Okl., 261 P.2d 450 [1953]; Davis v. Pumpco, Inc., Okl.App., 519 P.2d 557 [1974].

5 . Elwood Oil & Gas Co. v. Gano, 76 Okl. 287, 185 P. 443 [1919]; Nations v. Stone, 92 Okl. 18, 217 P. 1031 [1923]; Young v. Seely, Okl., 366 P.2d 951, 953 [1961]; Wattie Wolfe Co. v. Superior Contractors, Inc., Okl., 417 P.2d 302 [1966]; Pracht v. Oklahoma State Bank, Okl., 592 P.2d 976 [1979], See also, Spiller v. Massey & Moore, Okl., 406 P.2d 467, 471 [1965].

6 . Marland Refining Co. v. Harrel, 167 Okl. 548, 31 P.2d 121 [1934],