Sixth District Determines Trial Court Properly Applied “Tort of Another” Doctrine in Favor of Landowners With the Challenging Driveway.
Co-contributors Marc and Mike have written an article on when attorney’s fees may be awarded as damages in certain cases. (See “When the American Rule Doesn’t Apply: Attorney’s Fees as Damages in California Litigation,” California Litigation, Vol. 21, No. 3 (California State Bar 2008), available for reading with thanks to the State Bar on our November 13, 2008 post.) One such instance occurs if the “tort of another” doctrine applies. The next opinion affirmed a fee award based on this doctrine.
Bennett v. M. Lewis, Inc., Case No. H032813 (6th Dist. May 29, 2009) (unpublished) involved residential purchasers who had to sue when their adjoining neighbors tried to prevent them from using a driveway turnout. The parties reached a settlement in which residential purchasers obtained legal title to the turnout area. Residential purchasers subsequently sued the prior owner and contractor which constructed the driveway for nondisclosure and negligent construction. Following a bench trial, residential purchasers were awarded damages against defendants on the negligent construction claim in the amount of $32,531.31, some of which included attorney’s fees they had incurred in the prior litigation against their adjoining neighbors. Among other challenges, defendants challenged the award of fees under the “tort of another” doctrine.
Defendants did not prevail on appeal.
The “tort of another doctrine” allows a plaintiff attorney’s fees as damages if he or she is required to employ counsel to prosecute/defend an action against a third party because of the tort of the defendant. (Gray v. Don Miller & Associates, Inc., 35 Cal.3d 498, 505 (1984).) “Nearly all of the cases which have applied the doctrine involve a clear violation of a traditional tort duty between the tortfeasor who is required to pay the attorney fees and the person seeking compensation for those fees.” (Sooy v. Peter, 220 Cal.App.3d 1305, 1310 (1990).) In this case, because defendants lost their challenges to the negligent construction determination, the doctrine clearly applied.
Defendants then argued that because residential purchasers and neighbors agreed for purposes of insurance payment of fees on a cross-complaint in the prior litigation that the carrier only needed to pay for 50% of the fees, that conduct meant that defendants should only be liable for 50% of the damages award. This contention did not win, given that the neighbor’s cross-complaint arose out of the same facts as residential purchasers’ complaint such that there was no factual reason to reduce the damages award.