§431:10C-211 Attorney's fees. (a) A person making a claim for personal injury protection benefits may be allowed an award of a reasonable sum for attorney's fees, and reasonable costs of suit in an action brought by or against an insurer who denies all or part of a claim for benefits under the policy, unless the court upon judicial proceeding or the commissioner upon administrative proceeding determines that the claim was unreasonable, fraudulent, excessive, or frivolous. Reasonable attorney's fees, based upon actual time expended, shall be treated separately from the claim and be paid directly by the insurer to the attorney.

(b) A person who has effected a tort recovery, whether by suit or settlement, and who is sued by the insurer to recover fifty per cent of the personal injury protection benefits paid, under section 431:10C-307, may be allowed reasonable attorney's fees and reasonable costs of suit.

(c) A person suing in tort, as permitted under this article, may enter into any arrangement with an attorney.

(d) An insurer or self-insurer may be allowed an award of a reasonable sum as attorney's fees based upon actual time expended, and all reasonable costs of suit for its defense against a person making claim against the insurer or self-insurer, within the discretion of the court upon judicial proceeding or the commissioner upon administrative proceeding where the claim is determined to be fraudulent or frivolous. Such attorney's fees and all reasonable costs of suit so awarded may be treated as an offset against any benefits due or to become due to the person. [L 1987, c 347, pt of §2; am L 1992, c 124, §6; am L 1997, c 251, §34]

Cross References

Vexatious litigants, see chapter 634J.

Case Notes

Where court found that it was reasonable for plaintiff to litigate the issues raised in the action, court awarded plaintiff reasonable attorneys' fees pursuant to subsection (a). 821 F. Supp. 632 (1993).

Plaintiff had a plausible claim to attorney's fees and costs under either subsection (a) or §431:10C-304(5). 685 F. Supp. 2d 1123 (2010).

The plain language of subsection (a) (1993) allows an award of reasonable fees and costs to any person, insured or provider, who contests a denial of no-fault benefits for injuries. 90 H. 1, 975 P.2d 211 (1999).

Where allowing insurer to seek attorney's fees under §607-14 would have contravened the attorney's fee award scheme set forth in this section, trial court did not abuse its discretion in denying insurer's motion for attorney's fees and costs. 109 H. 537, 128 P.3d 850 (2006).

The assigned claim coverage to which plaintiff was deemed entitled did not constitute a "policy" for purposes of subsection (a); thus, because an insurer did not deny a claim under a "policy", plaintiff was not entitled to attorney fees under this section. 113 H. 246, 151 P.3d 727 (2006).

Obtaining a remedy on appeal is not required in order to obtain attorney's fees under subsection (a). 129 H. 270, 298 P.3d 1034 (2013).

Petitioner's request for attorney's fees and costs was not unreasonable under subsection (a) because petitioner's underlying claim for personal injury protection benefits based on medical services rendered to the insured had been made before insured's policy limit was reached; inter alia, when petitioner first appealed, it was uncertain whether petitioner would recover on the claim under the circumstances, and, more importantly, there was favorable authority and policy supporting petitioner's position, and thus, petitioner's pursuit of appeal was not irrational or without reason. 129 H. 270, 298 P.3d 1034 (2013).

Under §431:10C-304(5), an award of attorney's fees and costs is mandatory if a claimant prevails in a settlement or suit for no-fault benefits; and under subsection (a), an award of attorney's fees and costs may, in the exercise of a court's or the commissioner's discretion, be awarded to a nonprevailing claimant, as long as the claim is not determined to be unreasonable, fraudulent, excessive, or frivolous. 104 H. 375 (App.), 90 P.3d 267 (2004).

Where insurer waived any challenge to insured's status as a real party in interest, insurance commissioner did not abuse discretion in awarding attorney's fees and costs to insured under subsection (a). 108 H. 393 (App.), 120 P.3d 1128 (2005).