Lewis v. United States
Erma T. LEWIS and Clark Stanley Milton v. UNITED STATES of America, Caroll Reta Ludwig and James O. Stobaugh
- Proceeding
- district
- Area
- civil
- Panel
- William J. Murray, Jr. (author)
Analysis
The plaintiffs moved to dismiss the defendants' cross-complaint seeking attorney's fees in a suit to set aside a National Service Life Insurance beneficiary designation. The court granted the motion, holding that attorney's fees are not recoverable in this context outside of the specific statutory provision governing the main action.
| What the court decided | The model |
|---|---|
Motion to dismiss the cross-complaint for attorney's fees granted.“Therefore, it is ordered and this does order that the said motion to dismiss the cross complaint be and the same is hereby granted.” | agree with court The court correctly identified that the American Rule generally prohibits the recovery of attorney's fees absent a statute, rule, or contract. The court noted that 38 U.S.C. § 784(g) provides a specific mechanism for fees in the main action (paid by the VA), but did not authorize a cross-complaint for fees against the plaintiffs. Therefore, the cross-complaint lacked a legal basis. |
The order itself: sound — The order is sound. It correctly applies the American Rule (fees not recoverable absent statute/contract) and distinguishes the specific statutory fee-shifting provision in 38 U.S.C. § 784(g), which mandates fees be paid by the government, not the private party. The dismissal of the cross-complaint is the correct result.
Opinion — Murray
ORDER
WILLIAM D. MURRAY, Senior District Judge.
This action arises under Title 38 U. S.C.A., 784 ff., for the purpose of setting aside a designation of beneficiary on two National Service Life Insurance Policies. The defendants have filed a cross complaint asking the court to deny plaintiffs any relief and to grant them reasonable attorney’s fees from the plaintiffs in case they are successful. The plaintiffs have moved the court to dismiss the Cross Complaint.
The subject of attorney’s fees as it applies to this Title is fully covered in Section 784(g).
“Whenever a judgment or decree shall be rendered in an action brought under the provisions of this section, the court, as a part of its judgment or decree, shall determine and allow reasonable fees for the attorneys of the successful party or parties and apportion same if proper, said fees not to exceed 10 per centum of the amount recovered and to be paid by the Veteran’s Administration out of the payments to be made under the judgment or decree at a rate not exceeding one-tenth of each of such payments until paid; * * *"
It should also be noted that attorney’s fees can ordinarily be obtained by a prevailing party against an adverse party only by virtue of a statute, a rule of court, or the provisions of a written agreement. Standard Accident Ins. Co. of Detroit, Mich. v. Hull et al., 91 F.Supp. 65 (S.D.Cal.1950). Attorney’s fees are not recognized as recoverable damages unless authorized by statute or contract. Paper Makers Importing Co. v. City of Milwaukee, 165 F.Supp. 491 (E.D.Wis.1958).
*562Here the court knows of no exception that would allow an action for the recovery of attorney’s fees in this type of case.
Therefore, it is ordered and this does order that the said motion to dismiss the cross complaint be and the same is hereby granted.
Cites, in this corpus
- Standard Accident Ins. Co. of Detroit v. Hull 10550-C · 1950-05-24