"This rule evolved as a way to protect defendants from the possibility that a jury may be influenced in its findings of liability or damages by the mention of insurance." LDL Cattle Co., Inc. v. Guetter, 1996 SD 22 at ¶ 27, 544 N.W.2d at 528-529 (citing Lowe v. Steele Const. Co., 368 N.W.2d 610, 613 (SD 1985)). What was mentioned in this case was Atkins' health insurance, not Stratmeyers' liability insurance, which is not prohibited by the statute.

SDCL 15-17-7 provides in part: "The court may allow attorneys' fees as costs for or against any party to an action only in the cases if it is specifically provided by statute [emphasis added][.]" See also Lowe v. Steele Constr. Co., 368 N.W.2d 610 (S.D. 1985); Noll v. Brende, 318 N.W.2d 319 (S.D. 1982); Estate of Weickum, 317 N.W.2d 142 (S.D. 1982). Employee contends that because employer is an "insurer" as defined in SDCL 58-1-2(2), employer may be held liable for attorneys' fees as an "insurance company" under SDCL 58-12-3.

Id. See also Lowe v. Steele, 368 N.W.2d 610 (S.D. 1985) (attorney's fees awarded only as specifically provided by statute). On February 13, 1987, Plaintiff brought this action pursuant to 42 U.S.C. § 2000e-2(a)(1), 2000e(k) and 2000e-5(k) seeking an award of attorney's fees.

Thus, even if there is no statute authorizing attorney's fees, they are recoverable if the parties' contract so provides. Microsoft, 2005 SD 113 at ¶ 29, 707 N.W.2d at 98; City of Aberdeen v. Rich, 2003 SD 27, ¶ 25, 658 N.W.2d 775, 781; Jacobson, 2001 SD 33 at ¶ 31, 623 N.W.2d at 91; Estate of O'Keefe, 1998 SD 92, ¶ 17, 583 N.W.2d 138, 142; Vanderwerff Implement, Inc. v. McCance, 1997 SD 32, ¶ 17, 561 N.W.2d 24, 27; O'Connor v. King, 479 N.W.2d 162, 166 (S.D. 1991); Assman v. J.I. Case Credit Corp., 411 N.W.2d 668, 671 (S.D. 1987); Lowe v. Steele Const. Co., 368 N.W.2d 610, 614 (S.D. 1985); NBC Leasing Co. v. Stilwell, 334 N.W.2d 496, 500 (S.D. 1983); Tracy v. T B Const. Co., 85 S.D. 337, 340, 182 N.W.2d 320, 322 (1970); Dodds v. Bickle, 77 S.D. 54, 62, 85 N.W.2d 284, 289 (1957). While the body of the dissent appears to acknowledge that attorney's fees are recoverable upon an agreement of the parties, that rule does not appear to be followed in the dissent's footnote emphasizing that attorney's fees may only be granted in those cases specifically allowed by statute (listing those specific statutes).

[¶ 50] The discretionary reasonable attorney's fees to be awarded as part of the costs may include background reading material, if included as part of the attorney's fee agreement with the client, Landfill. "It is settled law that attorney fees are allowed in actions . . . when specifically provided by statute or agreement of the parties." In re Rich, 520 N.W.2d 63, 69 (SD 1994); Meisel v. Piggly Wiggly Corp., 418 N.W.2d 321, 325 (SD 1988); Lowe v. Steele Constr. Co., 368 N.W.2d 610, 614 (SD 1985). [¶ 51] The burden of establishing the fee agreement and the billable time and expense thereunder is upon Landfill, (not Landfill's attorney as attorney is not a party to the action).

The authority to tax such costs should not be implied, but must rest upon a clear legislative grant of power to do so.Salem Sales, Inc. v. Brown, 443 N.W.2d 14, 15 (S.D. 1989) (citing Lowe v. Steele Construction Co., 368 N.W.2d 610 (S.D. 1985); State Highway Comm'n v. Hayes Estate, 82 S.D. 27, 140 N.W.2d 680 (1966)) (other citations omitted). In addition, the legislature has decided that "[t]he concept of costs as an indemnity to be recovered by a prevailing party is abolished in the courts of South Dakota."

As the circuit court's award of fees and costs lacked a statutory basis, it was improper. Schuldies, 1996 SD 120, ¶ 38, 555 N.W.2d at 100 (holding that the power to award attorney fees cannot be implied, but must be based on a clear legislative grant of power) (citing Haberer, 412 N.W.2d at 874; Lowe v. Steele Constr. Co., 368 N.W.2d 610, 615 (S.D. 1985); City of Aberdeen v. Lutgen, 273 N.W.2d 183, 185 (S.D. 1979)). [¶ 15.] Our decision, bolstered by the circuit court's conclusions at the motion hearing, also finds support in the facts of the case.

[¶ 17] It is settled law that attorney fees are allowed in actions only when specifically provided by statute or agreement of the parties. In re Rich, 520 N.W.2d 63, 69 (S.D. 1994); Meisel v. Piggly Wiggly Corp., 418 N.W.2d 321, 325 (S.D. 1988); Lowe v. Steele Constr. Co., 368 N.W.2d 610, 614 (S.D. 1985). While Vanderwerff points to SDCL 15-17-38, the following statute, SDCL 15-17-39, states that "[a]ny provision contained in any note, bond, mortgage or other evidence of debt that provides for payment of attorney's fees in case of default of payment or foreclosure is against public policy and void[.]"

[¶ 22] Having "failed to make a timely and appropriate objection at the time of the alleged error[,]" Andreson did not properly preserve the issue for appeal. See State v. Spiry, 1996 SD 14, ¶ 15, 543 N.W.2d 260, 263. Furthermore, Andreson could have made a motion to strike the evidence, made a motion for a mistrial, or offered a curative instruction on the issue of insurance. See, e.g., Lowe v. Steele Constr. Co., 368 N.W.2d 610, 611 (S.D. 1985) (noting counsel made a motion for mistrial after references were made regarding insurance in the jury's presence). The record reflects that Andreson merely made an untimely motion for new trial.

[¶ 38] This Court has rigorously followed the rule that authority to assess attorney fees may not be implied, but must rest upon a clear legislative grant of power. Haberer, 412 N.W.2d at 874; Lowe v. Steele Constr. Co., 368 N.W.2d 610, 615 (S.D. 1985); City of Aberdeen v. Lutgen, 273 N.W.2d 183, 185 (S.D. 1979). Cf. SDCL 15-17-38.