Bergen v. Travelers Insurance

Bell, Chief Judge. The appellant was insured under an automobile policy issued by the appellee. The policy provided for collision and uninsured motorist coverage. The insured vehicle was involved in a collision with a known uninsured motorist. Under the collision coverage the company paid $3,838 for damages to the automobile and received a loan receipt for this amount from the insured. The insured then sued the uninsured third party including as part of his alleged loss, the damage to his car. He recovered a judgment in the amount of $4,437.06. The insured then made demand on the insurance company to satisfy the judgment by paying him an amount which would have the effect of requiring the insurer to pay the attorney’s fees for the insured’s suit. The insurance company petitioned the superior court for a declaratory judgment. By stipulation of the parties a jury trial was waived and it was agreed for the issue in dispute to be decided by the court without a jury. A judgment was rendered to the effect that the insured was not entitled to his claimed deduction of one-third as attorney fees of the amount paid to him under the terms of the loan receipt, and that appellee was entitled to deduct the full amount of the collision coverage payment from the amount of the judgment recovered by appellant. Held: The appellant cannot recover the claimed attorney fees as there is no contract by which the insurer agreed to [617] pay them. The principle stated in Commercial Union Ins. Co. v. Scott, 116 Ga. App. 633 (158 SE2d 295) and First of Ga. Ins. Co. v. Horne, 120 Ga. App. 379 (170 SE2d 452) has application here. In Scott and Horne the plaintiffs were lawyers who sued to recover attorney fees for their services in actions in which they, as professional men, had represented the insured, recovered, and then brought suit for attorney fees against insurers who had interests in the prior judgments. Each case held that the fees were not recoverable as the relationship of attorney and client is a contractual one which must be agreed to by each of the parties and there was in both cases an absence of any contract whereby the insurers had contracted with the insureds’ attorneys to pay attorney fees. Argued September 5, 1972 Decided March 14, 1973 Rehearing denied March 30, 1973 Charles L. Sparkman, Joseph B. Bergen, for appellant. Bouhan, Williams & Levy, James M. Thomas, Walter C. Hartridge, for appellee. Judgment affirmed. Eberhardt, P. J., Quillian, Clark and Stolz, JJ., concur. Evans, J., dissents. Deen, J., dissents with Pannell, J., concurring. Hall, P. J., dissents to judgment.