In Ware v. United Fire Lloyds, 09-12-00061-CV, 2013 WL 1932812 (Tex. App.—Beaumont May 9, 2013, no. pet. h.), the Beaumont Court of Appeals recently upheld an Orange County trial judge’s ruling on attorney fees in a Hurricane Ike case.

The case was tried to a jury in 2011, and the jury awarded the plaintiff approximately $8,000 in damages instead of the $245,000 the plaintiff had demanded before trial.  The issue of attorney fees was tried to the Court.  The judge denied the plaintiff’s request for approximately $133,000 in attorney fees, concluding the plaintiff had made an excessive demand.  The court found in particular that the plaintiff had acted in bad faith by claiming Ike damage when much of the damage was either excluded flood damage, or was caused by Hurricane Rita three years earlier.  Instead, the court awarded the plaintiff 40% of the actual award, or approximately $3,000, which the plaintiff appealed. 

The Court of Appeals agreed with the trial court, relying on existing case law holding that the most critical factor in determining the reasonableness of a fee award is the “degree of success obtained.”  The court observed that the trial judge heard evidence that some of the damages claimed by plaintiff were caused by Rita (for which plaintiff had already collected a $146,000 settlement from his prior carrier), by excluded flooding, or by pre-existing leaks.  Thus, the trial court did not abuse its discretion by holding that a fee demand far greater than the plaintiff’s actual recovery was unreasonable and excessive.

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