Herrig v. Herrig
In Herrig v. Herrig, 844 P.2d 487, 494-95 (Wyo. 1992), the court determined that 26-15-124(c) does create a private right of action.
At issue was whether third parties could bring an independent claim for attorney's fees pursuant to 26-15-124(c).
Thus, the Herrig court was directly presented with the issue of whether 26-15-124(c) creates a private right of action. That court determined that 26-15-124(c) did create a private right of action, although, under the particular circumstances of that case, the third parties could not state a claim upon which relief could be granted under the statute.
Specifically, in discussing the statute, the Herrig court stated:
The plain language of subsections (a) and (b) imposes a statutory duty on insurers to accept and pay, or reject, claims for insurance benefits within forty-five days of receiving adequate proof of a loss. In the event that the insurer rejected a claim or failed to timely act upon a claim, subsection (c) contemplates that the insured or his beneficiary would bring a contractual action against its insurer for claimed benefits.
Subsection (c) provides that a court may, in addition to entering a judgment for the insured or its beneficiaries on the contractual action, award attorney's fees and interest if it is determined that the insurer's refusal to accept and pay the claim within forty-five days of receiving proof of the loss was unreasonable or without cause.
An underlying action for contractual benefits, however, is not a jurisdictional prerequisite. An insured or his beneficiary may maintain an independent action to recover attorney's fees and interest for an unreasonable refusal to pay within forty-five days despite the insurer's ultimate payment of the claim prior to trial. Smith v. Equitable Life Assurance Society, 614 F.2d 720 (10th Cir.1980).
(Herrig, at 494-95.)