Collins & Aikman Products Co. v. Hartford Accident & Indemnity Co.

EAGLES, Judge. The dispositive issue here is whether attorney’s fees may be awarded as damages for an insurer’s breach of its duty to indemnify. Plaintiff cites our Supreme Court’s decision in Jamestown Mut. Ins. *414 Co. v. Nationwide Mut. Ins. Co., 277 N.C. 216, 219, 176 S.E.2d 751, 754 (1970), in support of its argument that attorney’s fees and litigation expenses are awardable as damages in insurance coverage disputes. After careful consideration of the records and briefs, we disagree. While the Supreme Court in Jamestown did allow attorney’s fees to be awarded as damages, it did so only because the insurer there breached its duty to defend rather than its duty to indemnify. Id. Jamestown is consistent with the general rule that the victorious party’s attorney’s fees are not recoverable except in instances (1) where the breached insurance contract was one for legal services or, in other words, a contract creating a duty to defend, (2) where the insurer acted in bad faith in denying coverage, or (3) where otherwise authorized by contract or statute. Perkins v. American Mut. Fire Ins. Co., 4 N.C. App. 466, 467-68, 167 S.E.2d 93, 94-95 (1969). Under both Jamestown and Perkins, attorney’s fees are awardable only in an amount equal to the value of the legal defense denied to the insured because of the insurer’s breach. The Jamestown decision does not stand for the proposition that attorney’s fees may be awarded as damages where the fees sought are those incurred by the insured while litigating the issue of coverage and alleging that the insurer breached its duty to defend. We note that a typical primary insurance contract imposes two principal duties on the insurer in exchange for the premiums paid by the insured: (1) a duty to indemnify the insured, within policy limits, for the amount of any judgment awarded against the insured; and (2) a duty to provide legal services in defense of a claim against the insured. Unlike the situation where the insurer breaches only its duty to indemnify, a breach of an insurer’s duty to defend generally forces the insured himself to bear the full financial burden of asserting his own legal defense. In this respect a primary insurance contract creating a duty to defend is, in effect, a contingent, fixed-price contract for legal services. In order to make “whole” the non-breaching party (the insured in cases where coverage is found), the value of the legal defense contracted for by the insured must be awarded as damages, with those damages measurable in attorney’s fees. This reading of the Supreme Court’s decision in Jamestown neither conflicts with nor erodes the general rule as previously articulated by this Court. See Perkins, 4 N.C. App. at 467-68, 167 S.E.2d at 94-95. In Perkins we reviewed an order of the trial court denying *415 recovery of attorney’s fees in a coverage action either as a component of costs or as an element of damages. Id. Affirming the trial court’s refusal to award fees as either damages or costs, the Perkins court stated: 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. Id. This general rule continues in effect today with regard to coverage litigation. We hold that attorney’s fees incurred by the insured (the non-breaching party here) are not recoverable as damages where those fees are incurred in the course of litigation to determine coverage and compel the insurer to perform its duties. Our decision today does not hold that an insured’s attorney’s fees can never be recovered in coverage litigation. Attorney’s fees clearly can be recovered in situations, for example, where an insurer acts in bad faith in denying coverage or where recovery of fees is otherwise authorized by contract or statute. Finally, we note also that we have long recognized that the rules governing insurance contracts at times vary from those governing more conventional contractual situations. In insurance contracts, we encounter the disparity in bargaining power and sophistication of parties that is often reflected in adhesion contracts. With this in mind we note that were Perkins not the law of North Carolina, we might well reach a different result. We need not address plaintiff’s remaining assignments of error. Affirmed. Chief Judge ARNOLD and Judge MARTIN, Mark D., concur.