“‘Taxing of attorneys’ fees as costs relates to a mode of procedure.’” (quoting Phoenix Fed. Sav. & Loan v. Great S.W. Fire Ins. Co., 603 P.2d 356, 358 (Okla. Ct. App. 1979) (internal quotation omitted))
How later courts described this case
- “‘Taxing of attorneys’ fees as costs relates to a mode of procedure.’” (quoting Phoenix Fed. Sav. & Loan v. Great S.W. Fire Ins. Co., 603 P.2d 356, 358 (Okla. Ct. App. 1979) (internal quotation omitted))
Written by the judges who cited it.
The opinion
LAVENDER, Justice:
This is an appeal from an order overruling a motion to assess attorney fees to the prevailing party pursuant to 36 O.S.Supp. 1977, § 3629 B. 1
The pertinent facts are as follows:
On September 20, 1975, appellee issued a fire insurance policy to appellants.
On April 25, 1976, a fire loss occurred. On February 24, 1977, appellants brought suit to recover under the policy.
On October 1, 1977, 36 O.S.Supp.1977, § 3629 B became effective.
*1259 On March 29,1978, a judgment on a jury verdict was entered in favor of appellants.
The sole issue presented on appeal is whether that portion of 36 O.S.Supp.1977, § 3629 B relating to awarding attorney fees to the prevailing party is to be construed as operating retrospectively.
We deem the case of Phoenix Federal Savings and Loan v. Great Southwest Fire Insurance Company, Okl.App., 603 P.2d 356 (1979) to be determinative of the issue in this case, wherein the court quoted with approval from Cox v. American Fidelity Assurance Co., Okl.App., 581 P.2d 1325 (1977) as follows:
“The general rule that the statutes will be given prospective operation only [Benson v. Blair, Okl., 515 P.2d 1363 (1973)] does not apply to statutes affecting procedure. Oklahoma Water Resources Bd. v. Central Oklahoma Master Conservancy Dist., Okl., 464 P.2d 748 (1969). Taxing of attorneys’ fees as costs relates to a mode of procedure. Jeffcoat v. Highway Contractors, Inc., Okl.App., 508 P.2d 1083 (1972).”
Appellee contends Phoenix Federal, supra, is distinguishable because Jeffocat v. Highway Contractors, Inc., supra, therein cited construed 12 O.S.1971, § 936 which allows an attorney fee to the prevailing party “to be taxed and collected as costs,” whereas 36 O.S.Supp.1977, § 3629 B provides upon rendition of judgment “costs and attorney fees shall be allowable to the prevailing party.” However, we find the statutes semantically indistinguishable. In determining whether 36 O.S.Supp.1977, § 3629 B should be assigned retrospective or prospective effect the differences between attorney fee “to be taxed and collected as costs” (12 O.S.1971, § 936) and “costs and attorney fees shall be allowed to the prevailing party” (36 O.S.Supp.1977, § 3629 B) are not material differences. Jeffcoat and Phoenix Federal are therefore applicable here.
The ruling of the trial court is reversed and the cause remanded for determination by the trial court of a reasonable attorney fee to be allowed to appellants.
IRWIN, C. J., BARNES, V. C. J., and WILLIAMS, HODGES, SIMMS, DOOLIN and HARGRAVE, JJ., concur.
OPALA, J., dissents.
. 36 O.S.Supp. 1977, § 3629 B provides: “It shall be the duty of the insurer, receiving a proof of loss, to submit a written offer of settlement or rejection of the claim to the insured within ninety (90) days of receipt of that proof of loss. Upon a judgment rendered to either party, costs and attorney fees shall be allowable to the prevailing party. For purposes of this section, the prevailing party is the insurer in those cases where judgment does not exceed written offer of settlement. In all other judgments the insured shall be the prevailing party. This provision shall not apply to uninsured motorist coverage.”