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Heins Telephone Co. v. Grain Dealers Mutual Insurance Co.

Filed: June 15, 1982.

HEINS TELEPHONE COMPANY
v.
GRAIN DEALERS MUTUAL INSURANCE COMPANY



Appeal by defendant from Lyon, Judge. Judgment entered 8 June 1981 in District Court, Lee County. Heard in the Court of Appeals 29 April 1982.

Arnold, Judge. Judges Vaughn and Martin (Robert M.) concur.

Arnold

Defendant's first argument challenges the sufficiency of the complaint to place the defendant on notice as to the basis for the plaintiff's claim. We find this contention to be wholly without merit. Plaintiff stated in its complaint that Gladys Dorsey was the wife of defendant's named insured and that defendant was obligated under the terms of the policy to pay the amount of plaintiff's judgment against Mrs. Dorsey. These allegations were clearly sufficient to allow defendant to prepare its defense. Indeed, in a factually similar case cited by defendant this Court upheld a complaint which alleged only that the driver of a car "was an insured under the provisions of the policy issued by the defendant insurance company." Marlowe v. Reliance Insurance Co., 15 N.C. App. 456, 460, 190 S.E.2d 417, 419, cert, denied 282 N.C. 153, 191 S.E.2d 602 (1972). Plaintiff here included considerably more detail in its complaint than that required by Marlowe.

Defendant's second assignment of error is that the trial court improperly denied summary judgment. Plaintiff established through its complaint and requests for admission, however, that there were triable issues of fact as to whether Gladys Dorsey was insured by defendant by virtue of her relationship to defendant's named insured, or her lawful possession of her husband's automobile. Summary judgment was properly denied.

As its next assignment of error, defendant argues that it was entitled to a directed verdict because plaintiff was not the real party in interest in the original action, plaintiff's existence was not proven by the evidence, and plaintiff suffered no damage. These arguments amount to a collateral attack on the original judgment against Gladys Dorsey, the correctness of which has no relevance to this appeal.

Defendant has made numerous other assignments of error in its appeal. We have reviewed all of these and found them to be so feckless as to merit no comment by this Court. We have concluded that the court committed no prejudicial error, that the jury verdict was supported by the evidence presented at trial, and that the trial court properly entered judgment consistent with this verdict and the prior determination of damages.

Finally, defendant's argument that the court abused its discretion in awarding counsel fees under G.S. 6-21.1 is without merit since the jury verdict clearly established that defendant's refusal to pay the claim had been unwarranted. Indeed, we consider the trial court's award of counsel fees at a rate of $20 per hour to have been extremely low. While we do not find that the award was so inadequate as to constitute an abuse of discretion, we feel strongly that plaintiff's attorney should be entitled to additional compensation for his time and effort in defending against this appeal. Authority to award additional attorney's fees for an appeal has been held to fall within the purview of G.S. 6-21.1. Hill v. Jones, 26 N.C. App. 168, 215 S.E.2d 168 (1975). Accordingly, we remand this cause for the limited purpose of allowing the District Court, in its discretion, and upon plaintiff's motion, to make findings of fact relevant to a determination of reasonable attorney's fees for services rendered on appeal and to enter an award consistent with those findings.

The judgment is

Affirmed and remanded in part.

Disposition

Affirmed and remanded ...


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