Attorney Fees In Fraud Case

In Bowling v. Ansted Chrysler-Plymouth-Dodge, Inc., 188 W. Va. 468, 425 S.E.2d 144 (1992), we were asked to determine whether attorney's fees could be awarded to a plaintiff who prevailed in a fraud action.

In order to answer the question affirmatively, this Court found that "fraud conduct" fell under the judicially adopted "bad faith" exception to the American rule.

We further held "that where it can be shown by clear and convincing evidence that a defendant has engaged in fraudulent conduct which has injured a plaintiff, recovery of reasonable attorney's fees may be obtained in addition to the damages sustained as a result of the fraudulent conduct." Bowling, 188 W. Va. at 475, 425 S.E.2d at 151.

In Hayseeds, Inc. v. State Farm Fire & Casualty, 177 W. Va. 323, 352 S.E.2d 73 (1986), to decide whether attorney's fees could be recovered by an insured against his or her insurer when the insurer had wrongfully refused to pay a claim filed by the insured.

We held in Hayseeds that "whenever a policyholder substantially prevails in a property damage suit against its insurer, the insurer is liable for:

(1) the insured's reasonable attorneys' fees in vindicating its claim;

(2) the insured's damages for net economic loss caused by the delay in settlement, and damages for aggravation and inconvenience."

In the case of Aetna Casualty & Surety Co. v. Pitrolo, 176 W. Va. 190, 342 S.E.2d 156 (1986), we were asked to determine whether attorney's fees may be awarded to an insured in a declaratory judgment proceeding against an insurer.

We held in that case: "Where a declaratory judgment action is filed to determine whether an insurer has a duty to defend its insured under its policy, if the insurer is found to have such a duty, its insured is entitled to recover reasonable attorney's fees arising from the declaratory judgment litigation."

In Daily Gazette Co., Inc. v. Canady, 175 W. Va. 249, 332 S.E.2d 262 (1985), this Court was called upon to resolve the question of whether attorney's fees could be directly assessed against an attorney for egregious type trial conduct. We held that case:

A court may order payment by an attorney to a prevailing party reasonable attorney fees and costs incurred as the result of his or her vexatious, wanton, or oppressive assertion of a claim or defense that cannot be supported by a good faith argument for the application, extension, modification, or reversal of existing law.