{ "id": 1737926, "name": "Washington Fire & Marine Insurance Co. v. Hammett", "name_abbreviation": "Washington Fire & Marine Insurance v. Hammett", "decision_date": "1964-04-13", "docket_number": "5-3226", "first_page": "954", "last_page": "957", "citations": [ { "type": "official", "cite": "237 Ark. 954" }, { "type": "parallel", "cite": "377 S.W.2d 811" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "16 A.L.R. 2d 1261", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "216 S. C. 309", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 12126976 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/sc/216/0309-01" ] }, { "cite": "10 Am. Rep. 746", "category": "reporters:state_regional", "reporter": "Am. Rep.", "opinion_index": 0 }, { "cite": "22 Ohio St. 382", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 887167 ], "opinion_index": 0, "case_paths": [ "/ohio-st/22/0382-01" ] }, { "cite": "116 Pac. 819", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "85 Kan. 296", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 1227066 ], "opinion_index": 0, "case_paths": [ "/kan/85/0296-01" ] }, { "cite": "105 F. Supp. 479", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 329781 ], "opinion_index": 0, "case_paths": [ "/f-supp/105/0479-01" ] }, { "cite": "172 Neb. 128", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 2596278 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/neb/172/0128-01" ] }, { "cite": "116 N. E. 644", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "279 Ill. 118", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4883300 ], "opinion_index": 0, "case_paths": [ "/ill/279/0118-01" ] }, { "cite": "67 S. W. 2d 200", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "188 Ark. 610", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1428299 ], "opinion_index": 0, "case_paths": [ "/ark/188/0610-01" ] }, { "cite": "218 Ark. 653", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1611954 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/218/0653-01" ] }, { "cite": "216 Ark. 509", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1614185 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/216/0509-01" ] } ], "analysis": { "cardinality": 403, "char_count": 5380, "ocr_confidence": 0.502, "pagerank": { "raw": 5.587014137524779e-07, "percentile": 0.9477133608947858 }, "sha256": "9c59cea389b99fa0af986827d00d75a2c4011f98184050f324c65cfdd6f754a8", "simhash": "1:430d88d58e4ec05c", "word_count": 934 }, "last_updated": "2023-07-14T21:17:18.904164+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Washington Fire & Marine Insurance Co. v. Hammett." ], "opinions": [ { "text": "George Rose Smith, J.\nThe appellee brought this suit for a declaratory judgment. She seeks to determine whether her attorney, W. B. Howard, is entitled to charge the appellant, her automobile collision insurer, an attorney\u2019s fee for having recovered the full amount of a subrogation claim held by the insurance company. This appeal is from a decree permitting Howard to retain 40% of the recovery as his fee.\nIn May of 1962 the appellant issued a $50 deductible policy of collision insurance to the appellee. On October 1 the appellee suffered personal injuries and property damage in a collision with Ray Purcell\u2019s car. The appellant promptly paid all but $50 of the property damage (which amounted in all to $289.94) and took a subrogation agreement from the appellee. On October 29 the appellant sent a form letter to Purcell, warning him not to settle his liability without reimbursing the insurer for its claim. On November 11 the company again wrote to Purcell, stating that if it did not hear from him with ten days it would have no alternative except to file suit. The company did not in fact bring an action or take any further steps to enforce its claim against Purcell.\nOn November 21 the appellee employed Howard under a contract fixing a contingent fee of 40% of any sum obtained by compromise settlement. Howard filed suit against Purcell on February 27, 1963, seeking to recover both for his client\u2019s personal injuries and for her property damage. In March a compromise settlement was reached with Purcell\u2019s insurer. That company issued two checks, one for the personal injury claim and the other, in the amount of $289.94, for the property damage. The latter included both the appellant and the appellee as payees. This suit was filed when the parties were unable to agree upon Howard\u2019s right to a fee.\nThe subrogation agreement provided that the insured should do nothing after the loss to prejudice the rights of the insurer. It is now insisted that the appellee breached the contract by filing suit for the property damage and by entering into the compromise settlement.\nThis argument is without merit. The appellee was entitled to file the action in her own name, the insurer not being a necessary party. McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S. W. 2d 566. Moreover, since the appellee\u2019s cause of action against Purcell could not be split, the insurer\u2019s claim for property damage would have been destroyed if Mrs. Hammett had failed to include that count in her complaint. Motors Ins. Corp. v. Coker, 218 Ark. 653, 238 S. W. 2d 491. The appellant is charged with knowledge of the rule of law permitting the insured to bring an action for all the property loss. If the appellant wished to be informed of the filing of any such suit, so that it might intervene, it could have inserted such a requirement in the subrogation agreement. That was not done.\nWe do not perceive that the appellee\u2019s action in compromising the property damage claim for its full amount was prejudicial to the rights of the insurer. In fact, if the appellee had paid over the entire proceeds of settlement to the insurer there would have been no dispute between the parties. Hence if the appellant\u2019s rights have been prejudiced it is not because of any conduct on the part of the insured but because in the circumstances the law allows her attorney to collect a fee.\nThe appellant\u2019s real grievance lies in having to pay a fee to an attorney not of its own choice. Subrogation, however, is governed by equitable principles. Webster v. Horton, 188 Ark. 610, 67 S. W. 2d 200. If the appellant had employed its own attorney and had actively participated in the action against Purcell it could not fairly have been compelled to contribute to Howard\u2019s fee. Pontiac Mutual County, etc. Co. v. Sheibley, 279 Ill. 118, 116 N. E. 644. But when the insurance company has benefited from the work done by the insured\u2019s attorney there is no inequity in requiring it to bear its fair share of the collection expense. An almost identical case so holding is United Services Automobile Assn. v. Hills, 172 Neb. 128, 109 N. W. 2d 174. Other cases recognizing the insurer\u2019s duty to contribute to the expense of collection include Brown v. T. W. Phillips Gas & Oil Co., D.C. Pa., 105 F. Supp. 479; Shawnee Fire Ins. Co. v. Cosgrove, 85 Kan. 296, 116 Pac. 819, 41 L.R.A. (n.s.) 719; Newcomb v. Cincinnati Ins. Co., 22 Ohio St. 382, 10 Am. Rep. 746; Powers v. Calvert Fire Ins. Co., 216 S. C. 309, 57 S. E. 2d 638, 16 A.L.R. 2d 1261. There is no contention that a 40% fee for collecting this small claim is unreasonably high.\nThe appellant also relies upon a second instrument executed by Mrs. Hammett, called a Loan Receipt. This document recites that she will not make a settlement or give a release without the written consent of the insurer. Howard actually gave the 'appellant notice of the proposed settlement a week before it was consummated. Inasmuch as Purcell\u2019s insurer paid the .full amount of the property loss the appellant had no valid reason for withholding its consent. Hence it is not in a position to complain of the fact that its consent was not obtained.\nAffirmed.", "type": "majority", "author": "George Rose Smith, J." } ], "attorneys": [ "Frank Lady, for appellant.", "W. B. Howard, Jack Segars, for appellee." ], "corrections": "", "head_matter": "Washington Fire & Marine Insurance Co. v. Hammett.\n5-3226\n377 S. W. 2d 811\nOpinion delivered April 13, 1964.\n[Rehearing denied May 11, 1964.]\nFrank Lady, for appellant.\nW. B. Howard, Jack Segars, for appellee." }, "file_name": "0954-01", "first_page_order": 976, "last_page_order": 979 }