Q: My understanding is that any attorney fee provision in a contract needs to be explicit. Here is an unusual question. This particular contract has a section about mandatory mediation and other requirements from the client. And in this section, there is the following statement “If client fails to perform said required act, the client forfeits any right to the prevailing party contractual attorney's fees." That paragraph seems to reference a contractual provision for attorney's fees/costs, but there is no other provision in the contract, that even remotely addresses the subject of attorneys fees, liability for either party in the event of a lawsuit. My guess is that at one time there was a provision for attorneys fees for the prevailing party in this contract, but it was sent deleted by the insurance company that uses this as a standard contract and they failed to this part. If there was a provision for attorneys fees for prevailing party, wouldn’t it have to be spelled out more explicitly than that little snippet?
A: The so-called "American Rule" is that absent a contractual agreement, statute, or rule allowing for them, attorney's fees are not usually recoverable. Just because there is no other explicit attorney fee provision in the contract doesn't per se mean the provision you are referencing isn't enforceable. Ideally, yes, it should be very explicit. However, in this instance, if an attorney were on the side that wants prevailing party attorney's fees (and there was no Court rule or statute I could lean on), they would probably argue that this reference is enough of an acknowledgement for them to be awarded. If they were on the side that doesn't ...
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