Second District Confirms That the “Tort of Another” Exception Applies to Third Party Actions, Not Direct Actions Against Joint Tortfeasors.
Infac Mgt. Corp. v. Infac India Group LLC,Case No. B195247 (2d Dist., Div. 4, May 19, 2008) (unpublished) reminds us that the “tort of another exception” to the American Fees Rule—the rule that fees are not recoverable unless allowed under a contract or by statute—is not broad in nature. Rather, this exception only applies to recovery of attorney’s fees necessitated by having to participate in true third-party actions. No more, no less, but an indispensable element nonetheless.
In Infac, plaintiff sought recovery of attorney’s fees in prosecuting an action against others in order to obtain relief from a prior judgment. The only problem is that the action was against joint tortfeasors, not third parties.
Were fees awardable in such circumstances? No, said the Second District, in an unpublished decision which happens to be a stark reminder about the constraints of this narrow doctrine.
The Court of Appeal observed that the “tort of another” exception applied only where a plaintiff prosecuted or defended an action against a third party to protect his interests, citing Prentice v. North American Title Guar. Corp., 59 Cal.2d 618, 620 (1963).
In the case before the Infac court, the plaintiff had brought a direct suit against joint tortfeasors, not third parties. (Slip Opn., at p. 29.)
The result: no, no, no, to triggering of the “tort of another” exception; the plaintiff was not allowed to claim fees under this exception, a result reached by a lower court and affirmed on appeal by the reviewing court.
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