# Foy v. Anderson

> Montana Supreme Court · June 13, 1978 · 176 Mont. 507

URL: https://www.frixlaw.com/law-library/cases/9507061

## Case

- **Full name:** DARBY J. FOY and JO ANN K. GILREATH, Plaintiffs and Respondents, v. DAVID R. ANDERSON, Defendant and Third-Party Plaintiff and Appellant, v. FARMERS INSURANCE EXCHANGE, an Insurance Corporation, BUD SMITH, the State of Montana Department of Highways, and KAREN EGGAN, Third-Party Defendants
- **Court:** Montana Supreme Court
- **Decided:** June 13, 1978
- **Citations:** 176 Mont. 507; 580 P.2d 114; 1978 Mont. LEXIS 819
- **Precedential status:** Published
- **Opinion:** Dissent by Haswell
- **Judges:** Daly, Haswell, Shea, Harrison, Sheehy
- **Cited by:** 67 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9507061

## How later opinions describe it (automated extraction)

- affirming award of attorney fees on equitable grounds despite absence of specific contractual or statutory grant

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9507061. Public record. Not legal advice.