# Potomac Residence Club v. Western World Insurance

> District of Columbia Court of Appeals · January 8, 1998 · 711 A.2d 1228

URL: https://www.frixlaw.com/law-library/cases/9728202

## Case

- **Full name:** POTOMAC RESIDENCE CLUB and Woodley Housing Corporation, Appellants, v. WESTERN WORLD INSURANCE COMPANY, Appellee; WESTERN WORLD INSURANCE COMPANY, Appellant, v. POTOMAC RESIDENCE CLUB and Woodley Housing Corporation, Appellees
- **Court:** District of Columbia Court of Appeals
- **Decided:** January 8, 1998
- **Citations:** 711 A.2d 1228
- **Precedential status:** Published
- **Opinion:** Concurring in part by King
- **Judges:** Schwelb, King, Ruiz
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated by Potomac Residence Club v. WESTERN WORLD INSURANCE COMPANY, 1998 D.C. App. LEXIS 41 (1998).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9728202

## Opinion text

KING, Associate Judge,
concurring in part and dissenting in part:
Although there are few legal principles, other than those of a constitutional nature, that can be said to be cast in stone, there are two rules of law in this jurisdiction which are so fundamental and so time-honored that they have come to be considered as bedrock principles. One, known as the American Rule, holds that “every party to a case shoulders its own attorneys’ fees, and recovers from other litigants only in the presence of statutory authority, a contractual arrangement, or certain narrowly-defined common law exceptions.” 1 That principle was first set forth by the Supreme Court over 200 years ago 2 and, so far as I can determine, was first explicitly stated some fifty years ago by a court in this jurisdiction. 3 It has been repeatedly reaffirmed in cases decided by this court since then. 4 The other “bedrock” principle, known as M.A.P. v. Ryan, which is of more recent vintage, holds “that no division of this court will overrule a prior decision of this court ... and that such result can only be accomplished by this court en banc.” 5 This principle has never been called into question and has been cited and followed countless times by this court since it was first laid down. Remarkably, by allowing an award of attorneys’ fees in this declaratory judgment action, even though there is no *1242 statute, contractual provision, or recognized common law exception allowing it, the majority has managed to violate both of these venerable rules of law. For that reason, I dissent from the principal holding of the court.
The majority defends the course it has taken on two general grounds. First, it claims, for various reasons, that the rule of M.A.P. v. Ryan, does not bar any division of this court from recognizing any new exception to the American Rule it thinks appropriate. Second, the majority is persuaded to the result it has reached in no small part because of the “force of the[ ] reasoning” in Maryland cases adopting the same exception to the American Rule. 6 Ante at 1232, note 3.1 disagree with the majority on the first ground for the reasons discussed below. On the second, the majority appears to be more favorably disposed to the reasoning in the Maryland cases than that state’s highest court which has recently questioned the underlying legal theories advanced in support of the extension of the American Rule to include an award of attorneys’ fees in circumstances similar to those here.
As noted above, the American Rule is generally stated as requiring each party to pay its own attorneys’ fees unless a statute or contractual provision provides otherwise. Three exceptions to that rule were noted by the Supreme Court in its landmark Alyeska decision: attorneys’ fees may be assessed “for the willful disobedience of a court order”; when the opposing party has acted in “bad faith, vexatiously, wantonly, or for oppressive reasons”; or from a fund preserved for the benefit of others. Id., supra note 2, 421 U.S. at 257-59, 95 S.Ct. at 1621-23. In the federal courts no other generally applicable exception has ever been recognized. 7 Until today, no other exception to the American Rule has ever been approved by this court. 8
I.
The principal basis for its conclusion that M.A.P. v. Ryan does not prevent it from recognizing a new exception to the American Rule is the majority’s observation that there is no authoritative holding to the contrary. In short, so the argument goes, because this court has never expressly ruled that attorneys’ fees are not available in these circumstances, a division of this court is free to decide that such fees may be awarded. While I concede that we have never directly held that fees may not be awarded on the facts presented here, the American Rule with its three generally recognized exceptions is so embedded into our civil jurisprudence that it has become the authoritative statement of the governing legal principle. In short, it is fair to say that the Oliver T. Carr definition of the American Rule, by virtue of its ancient origins and its repeated reaffirmation by the Supreme Court and this court, is so “inextricably woven into the warp and woof of the judicial fabric of this [court],” that it has become the established rule of law on the question of the award of attorneys’ fees. *1243 Washington v. A & H Garcias Trash Hauling Co., 584 A.2d 544 , 548 n. 6 (D.C.1990) (Schwelb, J., concurring and dissenting) (quoting In re Petition of Marko Terzich, 153 F.Supp. 651, 658 (W.D.Pa.1957), aff'd, 256 F.2d 197 (3d Cir.1958)). Because that is so, and because under M.AP. v. Ryan only the en banc court is empowered to overturn settled law, the majority may not adopt an exception to the American Rule not previously recognized in this jurisdiction.
The majority also finds support for its view, that M.A.P. v. Ryan is not a bar to its extension of the American Rule, in Link v. District of Columbia, 650 A.2d 929 (D.C.1994), where this court upheld the award of attorneys’ fees against a party, found to be in civil contempt, for nonwillful disobedience of a court order. The majority reasons that because one of the three exceptions to the American Rule only allows for fee awards for “willful” disobedience, the Link court’s allowance of fees for wow willful disobedience constitutes a new exception which the division deciding Link was free to recognize despite the constraints imposed by M.A.P. v. Ryan. That reasoning is flawed because Link did not establish a new exception.
As I said above, the court in Alyeska listed the three generally recognized exceptions to the American Rule, including “willful” disobedience of a court order in a civil contempt action. In making that statement the Alyes-ka court quoted a passage from Fleischmann, supra, 386 U.S. at 717-18, 87 S.Ct. at 1406-07. Fleischmann in turn cited to Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 427-28 , 43 S.Ct. 458, 466 , 67 L.Ed. 719 (1923), where fees were authorized in a matter involving conduct the Court held to be in “contempt of the court.” Id. at 427 , 43 S.Ct. at 466 . There was no discussion in Toledo Scale, however, whether the contumacious conduct was, or was not, willful, or whether a finding of willfulness was necessary for an award of fees under this exception. Although the Supreme Court has not definitively spoken on this point, virtually all of the federal courts of appeal that have addressed the question have concluded that, in order to invoke this exception to the American Rule, willfulness need not be shown, largely because the purpose of civil contempt is remedial in that it is designed to compensate the opposing party for its loss. Because the loss suffered by the injured party is not dependent upon the motive of the contemnor, a court may award attorneys’ fees whether the disobedience of the court order is willful or not. See Perry v. O’Donnell, 759 F.2d 702 , 705 (9th Cir.1985). 9 See also McComb v. Jacksonville Paper Co., 336 U.S. 187, 193 , 69 S.Ct. 497, 500 , 93 L.Ed. 599 (1949) (“The measure of the court’s power in civil contempt proceedings is determined by the requirement of full remedial relief’). The court in Link reached that result for essentially the same reasons. Therefore, the most that can be said of Link is that it refined the definition of one of the recognized exceptions to the American Rule. It certainly did not establish a new exception and therefore cannot be read as authority for a division of this court to adopt any “new” exception it wishes to recognize despite M.A.P. v. Ryan.
The majority also finds support in our recent en banc decision in Carl v. Children’s Hosp., 702 A.2d 159 (D.C.1997) (per curiam) (Carl II). If anything, what was decided by the en banc court in Carl II is consistent with my view that recognition of any further exceptions to the American Rule can only be accomplished by the en banc court.
*1244 In Carl , the division majority, relying upon four other recent cases, held that only the en banc court could authorize exceptions to the employment-at-will doctrine beyond the one recognized in Adams v. George W. Cochran Co., 597 A.2d 28, 32 (D.C.1991). See Carl v. Children’s Hosp., 657 A.2d 286 , 289 n. 6 (D.C.1995) (Carl I). The per curiam opinion of the en banc court, which was supported by eight of the ten judges considering the matter, acknowledged that the Carl I majority was correct in so holding when it observed that:
The division that initially heard this appeal affirmed the trial court’s [ruling rejecting Carl’s contention that another exception to the at-will doctrine should be recognized,] because it was bound by precedent to do so. Carl v. Children’s Hosp., 657 A.2d 286, 289 (D.C.1995), citing Gray v. Citizens Bank, 602 A.2d 1096, 1097 (D.C.) (“a division of [this] court is not free to expand the Adams exception”), vacated id. at 1102 , opinion reinstated on denial of rehearing en banc, 609 A.2d 1143 (D.C.1992); see M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971).
Carl II, supra, 702 A.2d at 159-60 (emphasis added). 10 The per curiam majority went on to say that it “now agrees” that additional “public policy” exceptions may be recognized by a division of the court. It then expressly overruled the Gray court’s holding that it was “not free to expand the Adams exception.” 11 Carl II, supra, 702 A.2d at 159 ; Gray, supra, at 1097. Thus, because divisions of the court had repeatedly said there was no such authority, action by the en banc court was necessary in order to authorize a division of the court to recognize any new exceptions. See also Gray v. Citizens Bank, 609 A.2d 1143 , 1144 n. 3 (D.C.1992) (en banc) (Wagner, J., joined by Schwelb, J., and Sullivan, J., dissenting from order denying petition for rehearing en banc as improvidently granted: “As the majority of the panel recognized, only the en banc court can decide the issue appellant raises”).
The same principle applies here. As discussed above, we have said, on many occasions, that the American Rule provides that “every party ... shoulders its own attorney fees, and recovers from other litigants only in the presence of statutory authority, a contractual arrangement or other narrowly defined common exceptions.... ” See Oliver T. Carr, supra, 604 A.2d at 883. At the very minimum, that principle is as well settled as the Adams-Gray limitation upon expansions of the at-will doctrine. But before the en banc court ruled otherwise in Carl II, no division was empowered to authorize new causes of action for fired employees. Therefore, it necessarily follows that only the en banc court can authorize new exceptions to the American Rule, or declare, as we did in Carl II, that new exceptions may be recognized by divisions of the court applying standards prescribed by the en banc court which would govern the exercise of this new authority. 12
Finally, on the merits, we should follow Safeway Stores, Inc. v. Chamberlain Protective Serv., Inc., 451 A.2d 66 (D.C.1982), and the cases it cites with approval, which, although not precisely on point, present facts which are sufficiently close to the circumstances here to serve as an authoritative basis for declining to recognize any new exception to the American Rule. In those cases the courts reaffirmed the “well-established” rule that an indemnitee is not entitled to an award of attorneys’ fees incurred in the *1245 course of prosecuting a successful claim to establish its right to indemnification. Id. at 72 , citing Ranger Construction, Co. v. Prince William County Sch. Bd., 605 F.2d 1298 , 1305 (4th Cir.1979) (“attorneys’ fees for establishing ... a right of indemnity ... are ... not recoverable”). 13 Unlike the majority, I can discern no meaningful distinction between the circumstances here, where Potomac Residence was denied attorneys’ fees incurred in this action to compel Western World to defend a lawsuit, and the circumstances in Safeway Stores, supra, and the other eases cited, where the indemnitee was denied fees and costs incurred in its claim against the indemnitor establishing the right of indemnification.
II.
Not only do I think the majority is without authority to recognize a new exception to the American Rule, I am also of the view the majority’s reliance on caselaw from other jurisdictions is misplaced for several reasons. First, it places far too much weight on the Maryland cases recognizing an exception to the American Rule under these circumstances. See Cohen, supra note 5. The majority correctly observes that we have always given respectful consideration to decisions of the Maryland Court of Appeals for both historical and other reasons. Ante at 1232, note 3; Ford v. United States, 616 A.2d 1245 , 1252 n. 16 (D.C.1992). But the majority goes beyond that, electing to follow the lead of the Maryland cases on this issue “primarily because of the force of their reasoning.” Ante at 1232, note 3. The Maryland Court of Appeals, however, has expressed what can fairly be described as misgivings about the reasoning underlying the Cohen holding in a recent case in which it declined to recognize still another exception to the American Rule where an insured brought a successful action against its insurance company for breach of a health insurance contract based on a failure to pay promised health benefits. Collier v. MD-Individual Practice Assoc., 327 Md. 1 , 607 A.2d 537, 542 (1992). Acknowledging that the cause of an insured seeking a declaration establishing entitlement to health benefits is as deserving as an insured attempting to obtain promised liability coverage, the Collier court described the Cohen rule as an “anomaly,” remarking that “the legal theory supporting this rule remains unrefined.” Id. (quoting Continental Cas. Co. v. Board of Educ., 302 Md. 516 , 489 A.2d 536, 547 (1985)). It declined to extend the exception beyond that recognized by Cohen, because to do so would “only compound the anomaly,” observing:
From the standpoint of a strict application of the American rule, there is no logical reason why the successful plaintiffs action on a liability insurance policy for breach of a promise to defend, or to pay the cost of defense, should include counsel fees in prosecuting the breach of contract action, when successful plaintiffs’ actions for other breaches of insurance contracts, or for breaches of other contracts, do not ordinarily include those counsel fees. The Maryland rule awarding to the successful insured counsel fees in declaratory judgment or assumpsit actions with liability insurers for breach of the promise to defend or to pay the cost of defense is an exception to the American rule. To extend that exception to health insurers, who breach their contracts by failure to pay covered benefits, will only compound the anomaly.
Collier, supra, 607 A.2d at 544 . This less than rousing endorsement of this exception to the American Rule does not commend it as one we should adopt. 14
*1246 Second, it is of some significance that a substantial majority of those courts that have been asked to award attorneys’ fees in these circumstances, as an exception to the American Rule, have declined to do so. A summary of the authorities in the various jurisdictions addressing this issue is set forth in the appendix to this opinion. As can be observed, thirty-five states have considered the issue in one fashion or another and twenty-two have allowed fee awards in the circumstances presented in this ease. Appendix at F and G. Those numbers are misleading, however, because most of the courts that have allowed fee awards did so on grounds not applicable here. For example, twelve states have allowed fee awards based upon either an interpretation of a specific statute addressing this question, the governing declaratory judgment statute, or a court rule. Appendix at Cl, DI, and El. Moreover, the courts in seven states have allowed fee awards based on their interpretation of the insurance contract language, a ground not relied upon by the majority or seriously pressed here. Appendix at Bl. But, of those courts that have expressly decided the question of whether attorneys’ fees should be awarded as an exception to the American Rule, as Maryland has done, more than two-thirds rejected that course (sixteen 15 out of twenty-three). Appendix at Al, 2 and 3. Thus, although a majority of the states allow fee awards in these circumstances, they have done so based on statutory provisions or contract language interpretations not applicable here. 16 Only a minority (seven jurisdictions) have adopted the Cohen exception to the American Rule. And, unlike this decision by a three-judge panel, each case in those seven jurisdictions was heard by the highest court with all, or nearly all, judges of the court participating. 17 Although the state of the law iii other jurisdictions is not dispos-itive on the question of how we should decide this issue, we nonetheless should not ignore the practice which predominates elsewhere which is contrary to what the majority has decided here today.
Finally, regulation of insurance companies and their relationship with the public is a legislative function of long standing. This jurisdiction is no exception and a not insignificant portion of the District of Columbia Code is devoted to insurance matters. See D.C.Code §§ 35-1101 to 35-4724 (1997 Repl.). In my view any extension of the rule allowing the award of fees in this area is better left to the legislature which has exercised its power to allow the award of attorneys’ fees on a number of occasions in recent years in other areas of the law. 18 In that regard, I find support in the rationale of the Supreme Court in Alyeska where it observed that although Congress has provided for fee awards under specified circumstances, those actions “can in no sense be construed as a grant of authority to the Judiciary to jettison *1247 the traditional rule against non-statutory allowances to the prevailing party and to award attorney fees whenever the courts deem the public policy furthered by a particular statute important enough to warrant the award.” Id. 421 U.S. at 263, 95 S.Ct. at 1624-25. For the same reason, we should not take the step the majority takes here and recognize a new exception to the American Rule. Because the majority holds otherwise, I dissent from that holding. 19
III.
With respect to the question of prejudgment interest, it is undisputed that a portion of the damage award represents the out-of-pocket expenses of the insured, while the far larger balance represents the attorneys’ fees and expenses due to its pro bono counsel. So far as the record shows, Potomac Residence has never paid these fees to counsel; therefore, Potomac Residence is not out-of-pocket for any sum relating to those fees. The trial court, however, made no findings concerning the separate portions, and appeared to treat the two distinct sums as one. Nor did the court state its rationale for denying Potomac Residence’s request for prejudgment interest.
While I am unaware of any authority which would allow for prejudgment interest on an award of attorneys’ fees and costs that have not yet been paid, there may, or may not, be sufficient justification to support prejudgment interest on an award owed to the nonbreaching party, ie., the insured, for consequential damages stemming from a breach of contract. See D.C.Code § 15-109 (1975 Repl.). Because there was no finding made by the trial court concerning the amounts owed to the insured and pro bono counsel separately, and because there is no basis set forth in the record for denying prejudgment interest to the insured on the portion of the award that is attributable to the insured as actual out-of-pocket expenses, upon remand the court should determine the actual amount of these out-of-pocket expenses, and whether or not the insured is entitled to prejudgment interest on that amount. I would also leave to the trial court, for determination in the first instance, the question whether Potomac Residence is entitled to receive prejudgment interest on the attorneys’ fees and costs not yet paid.
APPENDIX
*case decided by court other than highest court in state
A. Cohen-Type Exception.
1.. Yes (7 TOTAL)
Arkansas: Equity Mut. Ins. Co. v. Southern Ice Co., [ 282 Ark. 41 ], 334 S.W.2d 688 (Ark.1960).
Maine: Gibson v. Farm Family Mut. Ins. Co., 673 A.2d 1350 (Me.1996).
Maryland: Cohen v. American Home Assurance Co., [ 255 Md. 334 ] 258 A.2d 225 (Md.1969).
Minnesota: Brown v. State Auto. & Cas. Underwriters, 293 N.W.2d 822 (Minn.1980).
New York: Glens $Glen$ Falls Ins. Co. v. United States Fire Ins. Co., [ 34 N.Y.2d 778 , 358 N.Y.S.2d 773 ] 315 N.E.2d 813 (N.Y.1974) (fee award to insured/defendant).
Washington: McGreevy v. Oregon Mut. Ins. Co., [ 128 Wash.2d 26 ] 904 P.2d 731 (Wash.1995) (en banc).
West Virginia: Aetna Cos. & Sur. Co. v. Pitrolo, [ 176 W.Va. 190 ] 342 S.E.2d 156 (W.Va.1986); see also Hayseeds, Inc. v. State Farm Fire & Cas., [ 177 W.Va. 323 ] 352 S.E.2d 73 (W.Va.1986).
2. No (16 TOTAL)
Alabama: State Farm Mut. Auto. Ins. Co. v. Vails, [ 278 Ala. 266 ] 177 So.2d 821 (Ala.1965).
California: O’Morrow v. Borad, [ 27 Cal.2d 794 ] 167 P.2d 483 (Cal.1946); but see *1248 *Knatt v. California State Auto. Assoc., [ 123 Cal.App.3d 115 ] 176 Cal.Rptr. 420 (Cal.Ct.App.1981) (according to LEXIS this opinion was withdrawn by court order).
Florida: *Snider v. Continental Ins. Co., 519 So.2d 12 (Fla.Dist.Ct.App.1987).
Georgia: Maryland Cas. Co. v. Sammons, [ 63 Ga.App. 323 ] 11 S.E.2d 89 (Ga.[App] 1940) (fees not available absent bad faith).
Illinois: *Bonnie Owen Realty Inc. v. Cincinnati Ins. Co., [ 283 Ill.App.3d 812 , 219 Ill.Dec. 294 ] 670 N.E.2d 1182 (Ill.App. 5th Dist.1996); appeal denied, [ 171 Ill.2d 562 , 222 Ill.Dec. 429 ], 667 [677] N.E.2d 963 (Ill.1997); but see Green v. J.C. Penney Auto Ins. Co., 806 F.2d 759, 765 (7th Cir.1986) (federal court applying Illinois law allowed fee award based on holding in *Trovillion v. United States Fidelity & Guar. Co., [ 130 Ill.App.3d 694 ] 474 N.E.[2d] 953 (Ill.App. 5th Dist.1985), which was overruled by Bonnie Owen).
Indiana: *Mikel v. American Ambassador Cos. Co., 644 N.E.2d 168 (Ind.Ct.App.1994) (fees not available when insured brings suit; no ruling on availability of fees when insurer brings suit).
Iowa: New Hampshire Ins. Co. v. Christy, 200 N.W.2d 834 (Iowa 1972) (no fees absent showing of bad faith or fraud).
Louisiana: *Clemmons v. Zurich Gen. Accident & Liab. Ins. Co., 230 So.2d 887 (La.Ct.App.1969).
Michigan: *Shepard Marine Constr. Co. v. Maryland Cas. Co., [ 73 Mich.App. 62 ] 250 N.W.2d 541 (Mich.Ct.App.1976).
Missouri: * American Family Mut. Ins. Co. v. Brown, 631 S.W.2d 375 (Mo.Ct.App.1982)
New Hampshire: Utica Mut. Ins. Co. v. Plante, [ 106 N.H. 525 ] 214 A.2d 742 (N.H.1965).
New Jersey: Gerhardt v. Continental Ins. Cos., [ 48 N.J. 291 ] 225 A.2d 328 (N.J.1966) (N.J. later amended its court rules to permit fee awards in declaratory judgment suits in court’s discretion; see infra E.I.).
New Mexico: *Lujan v. Gonzales, [ 84 N.M. 229 ] 501 P.2d 673 (N.M.Ct.App.), cert. denied, [ 84 N.M. 219 ] 501 P.2d 663 (N.M.1972).
Oregon: First Nat’l Bank v. Malady, [ 242 Or. 353 ] 408 P.2d 724 (Or.1966); Draper v. Mullennex, [ 225 Or. 267 ] 357 P.2d 519 (Or.1960).
South Carolina: Hegler v. Gulf Ins. Co., [ 270 S.C. 548 ] 243 S.E.2d 443 (S.C.1978) (fees allowed, however, based upon interpretation of the insurance contract; see infra B.I.).
Tennessee: Carter v. Virginia Sur. Co., [ 187 Tenn. 595 ] 216 S.W.2d 324 (Tenn.1948).
3. Split Among State’s Appellate Courts
(1 TOTAL)
Ohio: *Nationwide Ins. Co. v. Harvey, [ 50 Ohio App.2d 361 ] 363 N.E.2d 596 (Ohio Ct.App.1976) (fees available only where “insurer has acted in bad faith or fraudulently or was stubbornly litigious”); *City of Willoughby Hills v. Cincinnati Ins. Co., [ 26 Ohio App.3d 146 ] 499 N.E.2d 31 (Ohio Ct.App.1986) (awarding fees where insured has not acted in bad faith or maliciously).
B. Fees Based on Insurance Contract Provision
1. Yes (7 TOTAL)
Colorado: *Wheeler v. Reese, 835 P.2d 572 (Colo.Ct.App.1992); Allstate Ins. Co. v. Robins, [ 42 Colo.App. 539 ] 597 P.2d 1052 (Colo.Ct.App.1979) (fees are “reasonable expenses” incurred “at company’s request”).
Idaho: Occidental Fire & Cas. Co. v. Cook, [ 92 Idaho 7 ] 435 P.2d 364 (Idaho 1967) (same).
Kansas: Upland Mut. Ins., Inc. v. Noel, [ 214 Kan. 145 ] 519 P.2d 737 (Kan.1974) (same).
Maryland: Bankers & Shippers Ins. Co. of New York v. Electro Enters., Inc., [ 287 Md. 641 ] 415 A.2d 278 (Md.1980) (same).
North Dakota: State Farm Fire & Cas. Co. v. Sigman, 508 N.W.2d 323 (N.D.1993) (same).
*1249 South Carolina: Hegler v. Gulf Ins. Co., [ 270 S.C. 548 ] 248 S.E.2d 443 (S.C.1978) (same).
Washington: Olympic S.S. Co. v. Centennial Ins. Co., [117 Wash.2d 37] 811 P.2d 673 (Wash.1991) (en banc) (same).
C. Fees Based on Declaratory Judgment Statute
1. Yes (3 TOTAL)
North Dakota: State Farm Fire & Cas. Co. v. Sigman, 508 N.W.2d 323 (N.D.1993) (statute allows relief “whenever necessary or proper”).
Texas: *Smith v. Fire Ins. Exch., 1996 WL 499453 , 1996 Tex.App. LEXIS 4002 (awarding fees to insurer under declaratory judgment statute).
Wisconsin: Elliott v. Donahue, [ 169 Wis.2d 310 ] 485 N.W.2d 403 (Wis.1992).
2. No (6 TOTAL)
Alabama: Clark v. Exchange Ins. Ass’n, [ 276 Ala. 334 ] 161 So.2d 817 (Ala.1964).
Arizona: *State Farm Mut. Auto. Ins. Co. v. O’Brien, [ 24 Ariz.App. 18 ] 535 P.2d 46 (Ariz.Ct.App.1975) (fees not available to insured/plaintiff under statute; court does not decide availability of fees where insured is defendant).
Louisiana: *Burton v. Lumbermens Mut. Cos. Co., 152 So.2d 235 (La.Ct.App.), cert. denied, [ 244 La. 895 ] 154 So.2d 767 (La.1963) (statute not for award of monetary judgments; further, fees not available under statute where suit not frivolous).
Oregon: Samuel v. Frohnmayer, [ 308 Or. 362 ] 779 P.2d 1028 (Or.1989).
Utah: Western Cas. & Sur. Co. v. Marchant, 615 P.2d 423 (Utah 1980) (fees not available under statute absent showing of bad faith).
Washington: Rocky Mountain Fire & Cas. Co. v. Rose, [ 62 Wash.2d 896 ] 385 P.2d 45 (Wash.1963).
D. Fees Pursuant to Statute to Discourage Coverage Contests 1
1. Yes (8 TOTAL)
Arkansas: Hicks v. Allstate Ins. Co., [ 304 Ark. 101 ] 799 S.W.2d 809 (Ark.1990) (quoting Ark.Code Arm. § 23-79-209(a) (1987)).
Florida: *First Nat’l Ins. Co. v. Devine, 211 So.2d 587 (Fla.Dist.Ct.App.1968) (recovery of fees incurred at trial level; but no statutory authority at time suit was filed for fees on appeal).
Hawaii: Commerce & Indus. Ins. Co. v. Bank of Hawaii, [ 73 Haw. 322 ] 832 P.2d 733 , recons, denied, [ 73 Haw. 625 ] 834 P.2d 1315 (Haw.1992).
Kansas: Missouri Med. Inc. Co. v. Wong, [ 234 Kan. 811 ] 676 P.2d 113 (Kan.1984).
Nebraska: State Farm Fire & Cas. Co. v. Muth, [ 190 Neb. 248 ] 207 N.W.2d 364 (Neb. 1973); see also State Farm Mut. Auto. Ins. Co. v. Selders, [ 189 Neb. 334 ] 202 N.W.2d 625 (Neb.1972).
New Hampshire Liberty Mut. Ins. Co. v. Home Ins. Indem. Co., [ 117 N.H. 269 ] 371 A.2d 1171 (N.H.1977).
New Mexico: Amica Mut. Ins. Co. v. Maloney, [ 120 N.M. 523 ] 903 P.2d 834 (N.M.1995) (insured entitled to fees under statute where insurer failed to pay claim).
Oregon: McGraw v. Gwinner, [ 282 Or. 393 ] 578 P.2d 1250 (Or.1978) (fees available under statute only where settlement not made within six months and only where insured recovers money judgment against insurer).
*1250 E.Fees Based on Court Rule
1. Yes (1 TOTAL)
New Jersey: *New Jersey Mfrs. Ins. Co. v. Consolidated Mut. Ins. Co., [ 124 N.J.Super. 598 ] 308 A.2d 76 (N.J.Super.Ct.Law Div.1973).
F. Number of Jurisdictions Awarding Fees Pursuant to Cohen-Type Exception, Insurance Contract Provision, a Specific Statute, a Declaratory Judgment Statute, or Court Rule
(22 TOTAL)
Arkansas
Colorado
Florida
Hawaii
Idaho
Kansas
Maine
Maryland
Minnesota
Nebraska
New Hampshire
New Jersey
New Mexico
New York
North Dakota
Ohio
Oregon
South Carolina
Texas
Washington
West Virginia Wisconsin
G. Number of Jurisdictions Denying Fees on any Ground
(13 TOTAL)
Alabama
Arizona
California
Georgia
Illinois
Indiana
Iowa
Louisiana
Michigan
Missouri
Ohio
Tennessee
Utah
. Oliver T. Carr Co. v. United Tech. Comm. Co., 604 A.2d 881, 883 (D.C.1992) (quoting Dalo v. Kivitz, 596 A.2d 35, 37 (D.C.1991)).
. Arcambel v. Wiseman, 3 Dali. 306, 1 L.Ed. 613 (1796); see Fleischmann Corp. v. Maier Brewing, 386 U.S. 714, 717-18 , 87 S.Ct. 1404, 1406-07 , 18 L.Ed.2d 475 (1967); the Supreme Court’s most comprehensive discussion of the American Rule can be found in Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240 , 95 S.Ct. 1612 , 44 L.Ed.2d 141 (1975) where it declined to recognize an exception which would allow an award of attorneys’ fees in actions where a litigant acted as a "private” attorney general.
. See Murphy v. O’Donnell, 63 A.2d 340 (D.C.1948).
. See, e.g., Trilon Plaza Co. v. Allstate Leasing Corp., 399 A.2d 34, 37 (D.C.1979) and cases cited therein.
. M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971).
. The lead Maryland case is Cohen v. American Home Assurance Co., 255 Md. 334 , 258 A.2d 225 (1969).
. Although of very limited applicability, the Supreme Court has also permitted a fee award under certain circumstances in some admiralty cases. See Vaughan v. Atkinson, 369 U.S. 527 , 82 S.Ct. 997 , 8 L.Ed.2d 88 (1962).
. In Murphy, supra note 3 , we observed that some jurisdictions allow recovery of attorneys' fees incurred in an earlier litigation on a theory of "wrongful-involvement-in-litigation." See Auxier v. Kraisel, 466 A.2d 416, 420 (D.C.1983). We first allowed a fee award on that ground in Brem v. United States Fidelity & Guar. Co., 206 A.2d 404, 407 (D.C.1965). Fees are recoverable in such instances because the plaintiff was required to participate in some litigation with a third party at some earlier time due to the defendant’s tortious conduct, and the plaintiff is therefore entitled to recover the losses incurred in the earlier action which includes attorneys’ fees expended in pursuing or defending that action. See First Nat’l Bank of Hutchinson v. Williams, 62 Kan. 431 , 63 P. 744, 745-46 (1901) cited in Murphy, supra, 63 A.2d at 342 n. 2. The situation is similar to what occurred here: because Potomac Residence prevailed in the declaratory judgment action against Western World, the latter is responsible for the attorneys' fees incurred by Potomac Residence in the earlier case in which it defended against the claim made against it by a third party. Allowance of fees in these circumstances is not an exception to the American Rule, however, because the American Rule applies to fee awards in the current case, not some past litigation.
. Four other federal circuits have reached the same result. See Cook v. Ochsner Found. Hosp., 559 F.2d 270, 272 (5th Cir.1977); TWM Mfg. Co. v. Dura Corp., 722 F.2d 1261, 1273 (6th Cir.1983); Commodity Futures Trading Comm'n v. Premex, Inc., 655 F.2d 779, 785 (7th Cir.1981); and Sizzler Family Steak Houses v. Western Sizzlin SteakHouse, Inc., 793 F.2d 1529 , 1535 (11th Cir.1986). The District of Columbia Circuit has not ruled formally on the point, but has indicated that it is in accord with the above cases. See Food Lion, Inc. v. United Food & Commercial Workers Int’l Union, AFL-CIO, 322 U.S.App. D.C. 301, 311 n. 14, 103 F.3d 1007 , 1017 n. 14 (1997). The Third Circuit has left the question open. See International Bhd. of Teamsters v. Western Pa. Motor Carriers Ass’n, 660 F.2d 76 , 84 n. 13 (3rd Cir.1981). The Second Circuit allowed fees in a case where the contempt was willful, see Vuitton et Fils S.A. v. Carousel Handbags, 592 F.2d 126, 130-31 (2nd Cir.1979), but has not addressed the precise question of whether fees are allowed absent a showing of willfulness.
. The two dissenters, one of whom was this judge, did not question the majority's conclusion that the division was correct in concluding that only the en banc court could authorize a division to recognize new exceptions. Rather, the dissenters were of the view that the en banc court should not extend such authority.
. A different majority, consisting of six judges, prescribed the standards a division must apply in determining new public policy exceptions. See Carl v. Children’s Hosp., 702 A.2d 159, 163 (D.C.1997) (Terry, J., concurring plurality opinion joined by three other judges) ("[T]he recognition of any public policy exception to the at-will doctrine must be solidly based on a statute or regulation that reflects the particular public policy to be applied, or (if appropriate) on a constitutional provision concretely applicable to the defendant’s conduct.”); see also id. at 197 n. 2 (Stead-man, J., dissenting opinion, joined by this judge) (acquiescing in Judge Terry’s concurring plurality opinion).
.See note 10, supra.
. Safeway Stores also relied upon cases from two other federal circuits. See Vallejos v. C.E. Glass Co., 583 F.2d 507, 510 (10th Cir.1978); Bagby v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 491 F.2d 192 , 198 n. 9 (8th Cir.1974). The other four federal circuits that have addressed this issue are in accord. See, e.g., Peter Fabrics, Inc. v. S.S. Hermes, 765 F.2d 306, 315 (2nd Cir.1985); Thyssen, Inc. v. S/S Eurounity, 21 F.3d 533, 541 (2d Cir.1994); Signal Oil & Gas Co. v. Barge W-701, 654 F.2d 1164, 1178-79 (5th Cir.1981); Dillingham Shipyard v. Associated Insulation Co., 649 F.2d 1322, 1328 (9th Cir.1981).
. The majority also relies upon a decision of a federal court of appeals interpreting Illinois law. See Green v. J.C. Penney Auto Ins. Co., 806 F.2d 759 (7th Cir.1986). Ante at 1232, note 4. That reliance is misplaced for the following reason. Green principally relied upon Trovillion v. U.S. Fidelity & Guar. Co., 130 Ill.App.3d 694 , 86 Ill.Dec. 39 , 474 N.E.2d 953 (Ill.App. 5th Dist.1985), *1246 a decision of an Illinois intermediate appellate court. The Green court acknowledged that the appellate courts in two of the state’s appellate districts had rejected fee awards in these circumstances, however, it chose to follow Trovillion , the only Illinois appellate case permitting fee awards, which was decided by an intermediate appellate court in still another district. Green, supra, 806 F.2d at 765 . Trovillion , however, was recently expressly overruled by the appellate court that decided it. See Bonnie Owen Realty v. Cincinnati Ins. Co., 283 Ill.App.3d 812 , 219 Ill.Dec. 294, 300 , 670 N.E.2d 1182, 1188 (Ill.App. 5th Dist.1996). Therefore, because Green's holding was based entirely upon a case that was itself later overruled, its precedential value is substantially undercut if not destroyed. The same can be said of the most recent federal decision cited by the majority which, like Green , predated Bonnie Owen. See National Cycle Inc. v. Savoy Reins. Co. Ltd., 938 F.2d 61 (7th Cir.1991). Ante at 1232, note 4.
. Because Ohio appellate courts have decided the issue both ways, it could be said that sixteen and a half of twenty-four states resolving the issue did not award fees.
. The judge’s articulation should also address on remand the question whether prejudgment interest is appropriate on the counsel fee to be awarded to Potomac Residence in connection with the declaratory judgment action.
. In Cohen v. American Home Assurance Co., 258 A.2d at 226 , five of seven judges of the court participated. One judge did not participate in Brown v. State Auto. & Cas. Underwriters, 293 N.W.2d 822 (Minn.1980).
. See e.g., D.C.Code § l-2553(a)(l)(e) (1997 Repl.) (Human Rights Act); D.C.Code § 1-1527(c) (1997 Repl.) (Freedom of Information Act); D.C.Code § 28-3905(k)(l)(B) (District of Columbia Consumer Protection Procedures Act).
. I do agree with the majority that the case should be remanded for findings of fact and conclusions of law with respect to the reasonableness of the fee award in the underlying proceeding. I also agree with the majority that the record supports the trial judge's determination that there was insufficient evidence on which to base an attorneys’ fee award on grounds of bad faith.
. For example:
In all suits in which the judgment or decree of a court is against a life, fire, health, accident, or liability insurance company ... or in a suit for a declaratory judgment under the policy ... the company shall also be hable to pay the holder of the policy all reasonable attorneys' fees for the defense or prosecution of the suit, as the case may be.
Hicks v. Allstate Ins. Co., 304 Ark. 101 , 799 S.W.2d 809, 810 (1990) (quoting Ark.Code Ann. § 23-79-209(a) (1987)).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9728202. Public record. Not legal advice.