noting that there is no serious doubt that "attorney fees can be an appropriate element of compensatory damages in a breach of contract case, where the fees have been incurred in defense of a claim by a third party which arises out of the breach of contract," a principle the majority in that case did not dispute
How later courts described this case
- noting that there is no serious doubt that "attorney fees can be an appropriate element of compensatory damages in a breach of contract case, where the fees have been incurred in defense of a claim by a third party which arises out of the breach of contract," a principle the majority in that case did not dispute
- noting that recovery of attorney fees as compensatory damages depend on a finding of a breach of contract
Written by the judges who cited it.
The opinion
Baird, Judge,
dissenting.
With respect to the first and second assignments of error, there is no longer any serious doubt that attorney fees can be an appropriate element of compensatory damages in a breach of contract case, where the fees have been incurred in defense of a claim by a third party which arises out of the breach of contract. Though this .principle seems to be accepted by the majority, it is held not to apply to this case because the claim was settled or otherwise resolved prior to any finding that the contract was breached by Blough. Since this is litigation between the Williamses and Blough, it seems curious to deny recovery for an appropriate element of damage “in the absence of a finding that Blough breached the contract.” Such a finding is the whole object of the present litigation.'
Since whatever the Williamses had to expend to defend themselves against the Dalessio claim is an appropriate element of compensatory damage in their breach of contract case against Blough, I would sustain the first and second assignments of error.
As to the third assignment of error, the defect being claimed is one which would only be disclosed by a survey, and the original clause which exempted such matters from coverage was specifically deleted from the policy by a bargained-for agreement of the parties. First American admits that this means coverage for items which a correct survey would show, provided they are not of public record. The violation of the plat restrictions does not show on any public record, so it seems to me that coverage exists.
I would, therefore, also sustain the third assignment of error, and reverse the trial court’s judgment as to both aspects appealed herein.