§431:10C-211  Attorney's fees.  (a)  A
person making a claim for personal injury protection benefits may be allowed an
award of a reasonable sum for attorney's fees, and reasonable costs of suit in
an action brought by or against an insurer who denies all or part of a claim
for benefits under the policy, unless the court upon judicial proceeding or the
commissioner upon administrative proceeding determines that the claim was
unreasonable, fraudulent, excessive, or frivolous.  Reasonable attorney's fees,
based upon actual time expended, shall be treated separately from the claim and
be paid directly by the insurer to the attorney.



(b)  A person who has effected a tort recovery,
whether by suit or settlement, and who is sued by the insurer to recover fifty
per cent of the personal injury protection benefits paid, under section
431:10C-307, may be allowed reasonable attorney's fees and reasonable costs of
suit.



(c)  A person suing in tort, as permitted under
this article, may enter into any arrangement with an attorney.



(d)  An insurer or self-insurer may be allowed
an award of a reasonable sum as attorney's fees based upon actual time
expended, and all reasonable costs of suit for its defense against a person
making claim against the insurer or self-insurer, within the discretion of the
court upon judicial proceeding or the commissioner upon administrative
proceeding where the claim is determined to be fraudulent or frivolous.  Such
attorney's fees and all reasonable costs of suit so awarded may be treated as
an offset against any benefits due or to become due to the person. [L 1987, c
347, pt of §2; am L 1992, c 124, §6; am L 1997, c 251, §34]



 



Cross References



 



  Vexatious litigants, see chapter 634J.



 



Case Notes



 



  Where court found that it was reasonable for plaintiff to
litigate the issues raised in the action, court awarded plaintiff reasonable
attorneys' fees pursuant to subsection (a).  821 F. Supp. 632.



  The plain language of subsection (a) (1993) allows an award
of reasonable fees and costs to any person, insured or provider, who contests a
denial of no-fault benefits for injuries.  90 H. 1, 975 P.2d 211.



  Where allowing insurer to seek attorney's fees under §607-14
would have contravened the attorney's fee award scheme set forth in this
section, trial court did not abuse its discretion in denying insurer's motion
for attorney's fees and costs.  109 H. 537, 128 P.3d 850.



  The assigned claim coverage to which plaintiff was deemed
entitled to did not constitute a "policy" for purposes of subsection
(a); thus, because an insurer did not deny a claim under a "policy",
plaintiff was not entitled to attorney fees under this section.  113 H. 246,
151 P.3d 727.



  Under §431:10C-304(5), an award of attorney's fees and costs
is mandatory if a claimant prevails in a settlement or suit for no-fault
benefits; and under subsection (a), an award of attorney's fees and costs may,
in the exercise of a court's or the commissioner's discretion, be awarded to a
nonprevailing claimant, as long as the claim is not determined to be
unreasonable, fraudulent, excessive, or frivolous.  104 H. 375 (App.), 90 P.3d
267.



  Where insurer waived any challenge to insured's status as a
real party in interest, insurance commissioner did not abuse discretion in
awarding attorney's fees and costs to insured under subsection (a).  108 H. 393
(App.), 120 P.3d 1128.