A quiet debate on whether an insurer is entitled to an award of attorneys’ fees in coverage actions is closer to resolution. The argument generally focuses on what statute is applicable: Haw. Rev. Stat. § 607-14 (1993) (which mandates fees to be paid by the losing party in assumpsit actions) or Haw. Rev. Stat. § 431:10C-211 (fees may be awarded if the insured’s position is fraudulent or frivolous).
In Enoka v. AIG Hawaii Ins. Co., 109 Hawai`i 537, 128 P.3d 850 (2006), the Hawai`i Supreme Court held these two statutes were in conflict and, thus, the more specific statute (431:10C-211) controlled. Therefore, fees may only be awarded to an insurer if the insured’s position is fraudulent or frivolous.
A recent Summary Disposition Order by the Intermediate Court of Appeals affirmed this position. In Guajardo v. AIG Hawaii Ins. Co., the ICA rejected an insurer’s argument that Enoka is limited to the PIP context.
