HEIL v. NATIONWIDE MUT. INS. CO., 371 A.2d 1077 (Del. 1977)

Robert A. HEIL, Plaintiff below, Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant below, Appellee.

No. 75, 1976.Supreme Court of Delaware.Submitted July 21, 1976.
Decided March 14, 1977.

Upon appeal from Superior Court.

I. Barry Guerke, of Schmittinger Rodriguez, P.A., Dover, for plaintiff below, appellant.

Mason E. Turner, Jr., of Prickett, Ward, Burt Sanders, Wilmington, for defendant below, appellee.

Before HERRMANN, C.J., DUFFY and McNEILLY, JJ.

PER CURIAM:

This is an appeal from denial of attorney’s fees sought under 18 Del. C. § 4102.[*]

The plaintiff sued his insurance carrier upon a collision coverage policy for property damage to his automobile in an accident. Judgment was entered by the Court of Common Pleas in favor of the plaintiff in the amount of $59.25, being the difference between fair market value of the vehicle prior to the accident and the total amount of all liens and other charges paid by the defendant. The amount of such payment is not in dispute.

The Court of Common Pleas denied the plaintiff’s demand for attorney’s fees under

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§ 4102. Upon appeal, the Superior Court affirmed, ruling that § 4102

“does not contemplate the entry of attorney’s fees in a case of this nature. The unique circumstances of this case do no require that the insurer be subjected to this kind of penalty.”

The plaintiff appeals that decision.

We hold that it was error to deny the plaintiff the right mandated by the Statute. The word “shall” in § 4102 is mandatory and leaves no room for the exercise of judicial discretion as to the right.

Discretion does lie, however, in the determination of the amount of fee to be allowed under § 4102. The amount of the fee allowed in each case is governed by the circumstances of the case. The amount may be minimal or even nominal; but the Statute may not be disregarded entirely.

* * *
Reversed.

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