§431:10C-211  Attorney's fees.  (a)  Aperson making a claim for personal injury protection benefits may be allowed anaward of a reasonable sum for attorney's fees, and reasonable costs of suit inan action brought by or against an insurer who denies all or part of a claimfor benefits under the policy, unless the court upon judicial proceeding or thecommissioner upon administrative proceeding determines that the claim wasunreasonable, fraudulent, excessive, or frivolous.  Reasonable attorney's fees,based upon actual time expended, shall be treated separately from the claim andbe 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 fiftyper cent of the personal injury protection benefits paid, under section431:10C-307, may be allowed reasonable attorney's fees and reasonable costs ofsuit.

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

(d)  An insurer or self-insurer may be allowedan award of a reasonable sum as attorney's fees based upon actual timeexpended, and all reasonable costs of suit for its defense against a personmaking claim against the insurer or self-insurer, within the discretion of thecourt upon judicial proceeding or the commissioner upon administrativeproceeding where the claim is determined to be fraudulent or frivolous.  Suchattorney's fees and all reasonable costs of suit so awarded may be treated asan offset against any benefits due or to become due to the person. [L 1987, c347, 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 tolitigate the issues raised in the action, court awarded plaintiff reasonableattorneys' fees pursuant to subsection (a).  821 F. Supp. 632.

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

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

  The assigned claim coverage to which plaintiff was deemedentitled 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 costsis mandatory if a claimant prevails in a settlement or suit for no-faultbenefits; 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 anonprevailing claimant, as long as the claim is not determined to beunreasonable, fraudulent, excessive, or frivolous.  104 H. 375 (App.), 90 P.3d267.

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