American States Insurance v. Chun ( 1995 )

Andersen, J.^*

(concurring in part, dissenting in part) — I agree with the majority that the trial court’s order dismissing, without prejudice, the insurer’s declaratory judgment action and its order denying the motion for stay of arbitration are not appealable orders. Consequently, I would dismiss the insurer’s appeal from those orders.

I disagree with the majority’s treatment of the appeal from the award of attorney fees and therefore dissent.

The award of attorney fees, unlike the other orders considered here, is a final judgment and thus appealable. RAP 2.2(a)(1).

The exception to the American rule in awarding attorney fees, which was announced in Olympic S.S. Co. v. Centennial Ins. Co., 117 Wn.2d 37, 52-53, 811 P.2d 673 (1991), is a very narrow exception. Dayton v. Farmers Ins. Group, 124 Wn.2d 277, 876 P.2d 896 (1994). Where coverage is not an issue and the dispute is over the value of the claim presented under the policy, attorney fees are not authorized. Dayton, 124 Wn.2d at 280.²¹

Here the dispute was similar to that considered in Dayton. It was over the amount of damages suffered, not over coverage. Attorney fees thus were not authorized and I would reverse the award of fees.

Durham, C.J., and Madsen, J., concur with Andersen, J.

* Judge James A. Andersen is serving as a justice pro tempore of the Supreme Court pursuant to Const, art. IV, § 2(a), amended by Const. amend. XXXVI.

21 The trial judge did not have the benefit of our opinion in Dayton v. Farmers Ins. Group, supra.