"Can I get my legal fees reimbursed?" This is a practical issue that can come to mind for insured persons when trying to get their insurance income back after a disaster. In Mississippi, the answer to that question depends entirely on the circumstances of the case.
Mississippi has historically and currently very limited avenues to recover legal fees in a lawsuit. 1 Regarding the award of attorney's fees, Mississippi follows the rule that in the absence of a contractual or statutory provision, attorney's fees may not be awarded unless punitive damages are also correct. 2 The Supreme Court of Mississippi has further ruled that when there is a statutory permit to grant reasonable legal fees ”. . . an agreement on contingency fee does not govern the court's assessment of discretion but should be used by the court as a guide in determining reasonable legal costs. 3
Over the years, there have been several statutes enacted by the Mississippi Legislation that approve legal fees and charges. See e.g. Miss Code Ann. 1
One such legal provision that gives the courts the power to grant legal costs is § 83-21-51. It states:
In any action brought against an unauthorized foreign or foreign insurer on an insurance contract issued or delivered in that State to a resident of that State or to an undertaking authorized to do business therein, if the insurer has failed in thirty ( 30)) days after the request before the action was started to pay in accordance with the terms of the agreement, and it seems to the court that such a refusal was annoying and without reasonable cause, the court may allow the plaintiff a reasonable legal fee and include such a fee in all judgments may be made in such an action. Such fee may not exceed twenty-five percent (25%) of the amount that the court or jury finds that plaintiffs are entitled to recover from the insurer, but under no circumstances may the fee be less than twenty-five dollars ($ 25.00). The insurer's failure to defend such an action shall be deemed to be evidence that his failure to pay was worrying and without reasonable cause. 4
In order for a plaintiff to incur reasonable legal costs under 83-21-51, the insurer in question must be an "unauthorized foreign or foreign insurer." 5 In National Security Fire & Casualty Company v. Mid-State Homes legal fees were properly granted under the statute because the insurer was not authorized to do business in Mississippi. 6 Furthermore, the insurer must have failed to pay the contract for thirty (30) days "upon request before the action commenced." 7 The insurer's refusal must also be "annoying and without reasonable cause." 8 I American Southwest Corp. v. Underwriters in Lloyds, London, the plaintiff could not prove that the defendant's refusal to pay on the contract was' vexati ous and without reasonable cause. 9 In this case, after examining the facts, the court ruled that the plaintiff was not entitled to legal fees. 10 Sections 83-21-51 are just a statutory provision under which legal costs can be recovered. 11
The motivation behind the Mississippi not to follow another fee rule, such as one where the loser pays fees, is that some suggest that such a rule would discourage court) access and justice. 12 Although there are currently limited circumstances in Mississippi to be awarded attorney's fees, former Mississippi Supreme Court Robertson once stated that advances in private law and statutory law allow for the recovery of attorney's fees. is the legislator's way of signaling that 'common law and case law' is lagging behind. 13
Only time will tell whether Mississippi's jurisprudence and common law will catch up with existing statutory and statutory laws, but at present it is important for the insured to understand the circumstances under which legal costs may be available in a bad case. trostvist.
1 Michael D. Herrin, The availability of extracontractual damages for emotional distress and legal costs in breach of insurance contracts 59 Miss LJ 537 (1989).
2 American Rule 1 Encyclopedia Miss. Law § 8: 2 (2d ed.) (West).
3 McCain v. Memphis Hardwood Flooring Co., 725 So. 2d 788 (Miss 1998) (infringed on other grounds by, Stockstill v. Gammill 943 So. 2d 35 (Miss 2006)).
4 Miss Code Ann. § 83-21-51 (west).
6 Nat’l sec. Fire & Cas. Co. v. Mid-State Homes, Inc. 370 So. 2d 1351, 1352 (Miss. 1979).
7 Miss. Code Ann. 83-21-51 § (west).
9 Am. Sw. Corp. v. Underwriters at Lloyds, London 333 F. Supp. 1333, 1344 (S.D. Miss. 1971).
11 See Miss. Code Ann. § 83-21-51 (west).
12 Jonathan Masters, Do I get my legal fees back? Holcomb Dunbar, https://www.holcombdunbar.com/get-attorneys -charges -back / (last visited September 7, 2021).
13 Michael D. Herrin, The availability of extra-contractual damages for emotional distress and legal costs in the event of unlawful breach of insurance contract 59 Miss LJ 537, 548 (1989).