In the later part of 2009, the plaintiff reached a confidential out of court settlement with the defendant insurance company. The defense asserted by the defendant insurance company to the allegations was that the agent had always believed that the policy was an ACV or actual cash value policy. The agent was unaware in his experience that the plaintiff or anyone could get a RC or replacement cost policy. When the issue came up, he stated that he always thought the policy was the inferior ACV policy and changing it over to that policy was fine with the defendant. Meanwhile, the plaintiff had absolutely no knowledge regarding any of this, particularly as it related to the recommendations made by the insurance company which were required. The fire sprinkler system in the hotel was not working properly and was the protective safeguard that formed the denial of the claim. The plaintiff was never made aware that this recommendation was made or that he had to comply with it.
There was a motion for a new trial. The new trial request which was granted revolved around the jury's award of attorney fees. The plaintiff was entitled to attorney fees as part of his damages under the "Tort of Another" doctrine. The doctrine basically is an exception to the general rule that each party pays for their own counsel fees. The doctrine states that if the actions of the defendant cause the plaintiff to incur attorney fees to defend or prosecute an action, the prevailing party is entitled to collect attorney fees as an element of their damages. In this matter, the plaintiff had to incur attorney fees to sue Chubb Insurance for its failure to honor the plaintiff's claim which was caused solely as result of the defendant agent's actions.
The jury awarded the plaintiff a little under $1 million for attorney fees in connection with that claim. The new trial will address the issue of whether the full amount of attorney fees should have been allocated or were the attorney fees to be allocated between the two actions. The plaintiff contended that there was no error or issue and the jury did intend to award the plaintiff the full amount of attorney fees.
The plaintiff is appealing the issue as to the granting of the new trial to the appellate court. The defendant is appealing on several issues relating to the trial in the matter.