the defendant was a passenger in an auto accident where the individual at fault sought to join her as a third party in the case, asserting that she had filed a claim against him, when in fact she had not
How later courts described this case
- the defendant was a passenger in an auto accident where the individual at fault sought to join her as a third party in the case, asserting that she had filed a claim against him, when in fact she had not
- affirming award of attorney fees on equitable grounds despite absence of specific contractual or statutory grant
- upholding the court’s general equity power to afford complete relief
- no fault defendant fees
Written by the judges who cited it.
Distinguished
Distinguished by Goodover v. Lindey's Inc., 255 Mont. 430 (1992)
We distinguished Foy, stating:
The opinion
MR. CHIEF JUSTICE HASWELL,
dissenting.
I respectfully dissent to the award of attorney fees.
The majority recognize that attorney fees cannot be awarded to the prevailing party in the absence of statute or contract. Here there is neither. The award is justified on the basis of making the prevailing party whole and granting complete relief. This justification is equally applicable to any defendant who is sued, hires an attorney, and ultimately prevails.
In my view, this decision constitutes a sharp break from existing law, the denial of precedential value by the majority notwithstanding. If the prevailing defendant is to be made whole and granted complete relief, why doesn’t this case establish a precedent?
Substantial arguments can be made for and against awarding attorney fees to the prevailing party in a lawsuit. In my view this is a matter of public policy to be resolved by the legislature. To date the legislature has not seen fit to grant attorney fees to a prevailing defendant (except in certain instances not pertinent to this case, e. g. eminent domain and reciprocal rights statutes).
I would adhere to existing law and require statutory authorization for an award of attorney fees in the absence of contract.