The dispositive issue on certiorari is whether, in comparative-negligence litigation, where both parties prevail on their respective claim and compulsory counterclaim arising from the same tortious event, controlling statutory and fundamental law requires that each party litigant be allowed an attorney's fee for the successful prosecution of its own claim and that the amount awarded be reduced by the percentage of negligence found by the fact trier? We answer in the affirmative.
THE ANATOMY OF LITIGATION
In May of 1989 the automobiles driven by appellant Leroy R. Smith [Smith] and appellee Debra Jean Jenkins [Jenkins] collided, with damage occasioned to both vehicles. Smith sued Jenkins for property loss and Jenkins brought a counterclaim for like recovery. After a jury-waived trial the court found the parties to have been equally at fault; in conformity to the comparative-negligence statute, 23 O.S. 1981 § 13,
By their post-judgment motions both parties sought attorney's fee, invoking the provisions of 12 O.S. 1981 § 940.
The Court of Appeals affirmed, holding that where, as here, claims are "inexorably interrelated" — because they arise from the same transaction — and a judgment goes to both parties, one against the other, the party with the greater amount, or a "net judgment", is the sole prevailing party in the case who is entitled to an award of attorney's fee.
THE PARTIES' ARGUMENTS
Smith asserts that in applying the net-recovery test to determine one's prevailing-party status, the Court of Appeals erroneously assumed an automatic setoff of the respective awards, contrary to controlling Oklahoma jurisprudence.
The "one judgment," "one prevailing party" and "net judgment" analytical approach for identifying a litigant as "prevailing party" in an action, Smith argues, is neither compatible with the comparative-negligence regime nor equitable in the context of this case scenario. According to Smith, the law's policy of an automatic, inflexible setoff of mutual awards for assessment of counsel fee to the "victor" undermines the very purpose of the apportionment-of-negligence concept and would result in one party's recovery that is grossly disproportionate to the adjudged percentage of its fault. Lastly, Smith urges that certain controlling or strongly persuasive Oklahoma jurisprudence, overlooked by the Court of Appeals, supports his position that under some circumstances there can be in the same action more than one prevailing party entitled to an attorney's fee.
Jenkins repeats the perceived teaching that there can be but one prevailing party in an action where, as here, claims are not separate and distinct,
UNDER THE FACTS OF THIS CASE, BOTH THE STATE FUNDAMENTAL AND STATUTORY LAW CALL FOR RECOGNIZING BOTH PARTIES, WHO WERE VICTORIOUS ON THEIR RESPECTIVE CLAIMS, AS PREVAILING PARTIES IN THE ACTION
Section 940 Viewed In Light Of The Comparative-Negligence Regime
Before the advent of our comparative-negligence regime, a plaintiff's contributory negligence
In assessing counsel-fee expenses against one's vanquished opponent we generally follow the American rule.
The parties in this appeal agreed that § 940(A) governs the counsel-fee regime for this case. The term "prevailing party" has been construed to mean one (a) who, at the conclusion of the case, has an affirmative judgment in its favor
It would greatly undermine, if not indeed offend, the comparative-negligence regime if in the case at bar the litigant with a net recovery were declared the only prevailing party in the action. The § 940 counsel-fee statute must be construed together with both our comparative-negligence system as well as with the inexorable command of Art. 23, § 6, Okl. Const.
When the applicable counsel-fee enactment (§ 940) and the comparative-negligence statutes (§§ 13, 14) are construed together, as they must, it is at once clear that in comparative-negligence cases — where, as here, both parties prevail on a claim and compulsory counterclaim that arise from the same tortious event — each party prevailing on its own claim against the other must be allowed a counsel-fee award, which, once ascertained, should be reduced by the percentage of negligence ascribed by the fact trier.
Extant jurisprudence pressed on us by Jenkins, which teaches that there can be but one judgment and hence only one prevailing party for allowance of a counsel-fee award,
The counsel-fee approach we announce today is entirely consistent with that in our general cost statutes, 12 O.S. 1991 §§ 938,
The single-party-victory approach to an allowance of attorney's fee in this case would offend the comparative-negligence regime. Controlling statutory and fundamental law requires that in negligence litigation counsel-fee pleas by victorious parties be allowed in the same manner as their damages are reduced. When § 940 — the counsel-fee statute here in dispute — is construed together with the applicable principles of our comparative-negligence law (§§ 13, 14), the general cost enactment (§ 930), as well as with the command of our fundamental law (Art. 23, § 6) that governs trials of negligence issues, it is clear that parties who stand victorious on their respective claims for the same tortious event are each entitled to a counsel-fee allowance against the other, which award, once ascertained, must be reduced by the fact trier's percentage allocation of negligence. Today's departure from our general counsel-fee regime under prevailing party statutes will apply only in comparative-negligence cases to claims and compulsory counter-claims for the same tortious event. We hence direct that on remand a reasonable attorney's fee for each of the two successful litigants for their trial-
ON CERTIORARI PREVIOUSLY GRANTED, THE COURT OF APPEALS' OPINION IS VACATED, THE TRIAL COURT'S POST-JUDGMENT COUNSEL-FEE RULING IS REVERSED, AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS PRONOUNCEMENT.
LAVENDER, V.C.J., and HARGRAVE, ALMA WILSON and KAUGER, JJ., concur.
SUMMERS, J., concurs in result.
HODGES, C.J., and SIMMS and WATT, JJ., dissent.