“‘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
OP ALA, Justice,
dissenting:
After an April 25, 1976 fire loss, an action was brought against the insurer on February 24, 1977. By today’s opinion the insured — as prevailing parties in that suit— are allowed an additional recovery of an attorney’s fee first statutorily authorized in an enactment which did not become effective until October 1, 1977 — almost a full year after this litigation had begun. 36 O.S.Supp.1977 § 3629 B. 1 I am unable to join in the court’s sanction of the statute’s retroactive application to benefit the insured in the case at bar. My dissent from the court’s view rests on two grounds:
(1) In Oklahoma — a jurisdiction adhering to the so-called “American rule” — the prevailing party’s attorney’s fee is not a taxable item of costs. It may not be recovered absent some legislative enactment authorizing it. Globe & Republic Insurance Company of America v. Independent Trucking Company, Okl., 387 P.2d 644, 647 (1963). When statutorily allowed, an attorney’s fee does not necessarily fall under the rubric of costs. It is variable rather than fixed. Its amount depends on a judicial decision rather than on the clerk’s ministerial act of taxation. Were the Oklahoma statutory court cost regime to consist in its entirety of similarly variable tariffs subject to be set according to the judge’s broad discretion, it would doubtless be fraught with a serious constitutional infirmity under our Magna Charta-derived Art. 2, § 6, Okl.Con., which wisely prohibits the *1260 “sale of justice”. Howe v. Federal Surety Co., 161 Okl. 144 , 17 P.2d 404, 405 (1933) and Ex parte Coffelt, 93 Okl.Cr. 343 , 228 P.2d 199, 201 (1951). Because of these characteristics that distinguish an award of attorney’s fee to the victor from ordinary costs in the case, the allowance, when statutorily authorized, should be treated as an additional element of recovery. Oliver’s Sports’ Center, Inc. v. National Standard Insurance Co., Okl., 615 P.2d 291, 295-297 (Opala, J., concurring).
(2) As an additional element of recovery an award of attorney’s fee to the victor, when statutorily authorized, “creates and enlarges substantive rights” in an action. Legislation which introduces an item of added liability should not be given retroactive application. Thomas v. Cumberland Operating Co., Okl., 569 P.2d 974, 976 (1977). When we do allow recovery of an attorney’s fee under a statute which was not in effect when litigation had begun, we wrongly license the legislature to “take away . . . [an] existing defense ...” in a pending suit in violation of Art. 5, § 52, 2 Okl. Con. Maynard v. Central Nat. Bank of Okmulgee, 185 Okl. 272 , 91 P.2d 653 (1939).
I would hold that retroactive application of 36 O.S.Supp.1977 § 3629 B is prohibited by the clear command of Art. 5, § 52, Okl. Con.
. § 3629 B provides in pertinent part: “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.” [emphasis added]
. Art. 5, § 52, Okl.Con., provides: “The Legislature shall have no power to revive any right or remedy which may have become barred by lapse of time, or by any statute of this State. After suit has been commenced on any cause of action, the Legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit.” [emphasis added]