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Employers Mut. Cas. Co. v. Tavernaro

United States District Court, E.D. Missouri, Northern Division
May 29, 1998
21 F. Supp. 2d 1039 (E.D. Mo. 1998)

Summary

recognizing that a Missouri statute containing identical language to that in S.C. Code Ann. § 15-53-100 has been interpreted by the Missouri Supreme Court to permit attorney's fees to be awarded only under "special circumstances," such as in the case of fraud

Summary of this case from GEICO Marine Ins. Co. v. Carnes

Opinion

No. 2:95CV00110 ERW.

May 29, 1998.

Robert W. Cockerham, Brown James, P.C., St. Louis, MO, for plaintiff.

H. Kent Desselle, Desselle Law Office, P.C., Independence, MO, for defendant.


MEMORANDUM AND ORDER


This matter is before the Court on plaintiff's motion to recover fees and expenses [document # 55].

On March 26, 1998, the Court granted plaintiffs motion for summary judgment and entered judgment against defendants. Plaintiff now requests the Court order defendants to pay plaintiff $46,537.50 in attorneys' fees; $13,255.89 in expenses; and $4,409.08 in costs. On May 29, 1998, a hearing by telephone was held regarding this motion.

§ 527.100 RSMo provides that costs may be awarded in a declaratory judgment action. § 527.100 RSMo ("court may make such award of costs as may seem equitable and just"); Washington University v. Royal Crown Bottling Company of St. Louis, 801 S.W.2d 458, 468 (Mo.App. 1990). However, whether or not these costs include attorney's fees depends upon whether the circumstances of the case invoke the "Bernheimer exception" found in Bernheimer v. First National Bank of Kansas City, 359 Mo. 1119, 225 S.W.2d 745 (1949). Id. This exception limits the instances where attorney's fees are awarded pursuant to § 527.100 to those of "special circumstances." Id. One situation which the Missouri Supreme Court has recognized as sufficient to warrant an award of attorney's fees is fraud. See Miller v. Higgins, 452 S.W.2d 121, 125 (Mo. 1970) ("A defrauded party may recover special damages necessarily incurred solely by reason of the fraud. Such expenditures may properly include the professional aid of an attorney to mitigate damages and avoid future losses"). In the Court's March 26, 1998 Order, the Court held that the policy at issue was void due to Steve Tavernaro's misrepresentations. The Court did not find Tiffany Tavernaro to be guilty of committing any fraud. Therefore, upon review of the record, and the arguments of counsel, the Court now makes the following rulings.

IT IS HEREBY ORDERED that defendant Steve Tavernaro pay plaintiff Employers Mutual Casualty Company $46,537.50 in attorney's fees.

IT IS FURTHER ORDERED that defendant Steve Tavernaro pay plaintiff Employers Mutual Casualty Company $13,255.89 in expenses.

IT IS FURTHER ORDERED that costs in the amount of $4,409.08 be taxed against defendants Steve and Tiffany Tavernaro.


Summaries of

Employers Mut. Cas. Co. v. Tavernaro

United States District Court, E.D. Missouri, Northern Division
May 29, 1998
21 F. Supp. 2d 1039 (E.D. Mo. 1998)

recognizing that a Missouri statute containing identical language to that in S.C. Code Ann. § 15-53-100 has been interpreted by the Missouri Supreme Court to permit attorney's fees to be awarded only under "special circumstances," such as in the case of fraud

Summary of this case from GEICO Marine Ins. Co. v. Carnes
Case details for

Employers Mut. Cas. Co. v. Tavernaro

Case Details

Full title:EMPLOYERS MUTUAL CASUALTY COMPANY, Plaintiff, v. Steven TAVERNARO and…

Court:United States District Court, E.D. Missouri, Northern Division

Date published: May 29, 1998

Citations

21 F. Supp. 2d 1039 (E.D. Mo. 1998)

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