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New York
Finkelstein v. Van Schaick, 149 Misc. 101, 267 N.Y.S. 471 (1933). An attorney
should apply for a contingent fee, sought for obtaining settlements of claims
against an insurer, as part of the liquidation proceedings.
Matter of Casualty Company of America v. America Rubin Claims, 244 N.Y. 443,
155 N.E. 735 (1927). The insurance commissioner was not acting as an
arbitrator in determining the fees to be paid to hired counsel. The attorney
was required to apply to the court for additional compensation and the court
had the power to increase counsel fees, a power incidental to the supervision
of the courts of liquidation, not dependent on the power of approval
contained in the insurance code.
North Carolina
Oklahoma
State ex rel. Ingram v. All American Assurance Co., 34 N.C. App. 517, 239 S.E.2d
474 (1977). The rehabilitation court has broad supervisory powers, and
therefore can award fees to insolvent insurer's attorneys of record for services
rendered in an insolvency proceeding, although statute does not specifically so
allow. The commissioner of insurance has both discretionary and ministerial
powers under the statute.
Oklahoma ex rel. Holland v. Heritage Nat’l Ins. Co., 184 P.3d 1093 (Okla. Civ. App.
2008). The court held that OKLA. STAT. tit. 36, § 1938 (2001), provided the right
for shareholders of an insolvent insurance company to file written objections at
a compensation approval hearing for attorney fees to be paid to counsel
engaged to assist the Insurance Department with the delinquency proceeding.
The appointed receiver argued that the shareholder should not be allowed to
object due to his lack of financial stake in the liquidation, his ulterior motives in
appearing, and his bad acts leading to the delinquency proceeding. The court,
however, held that OKLA. STAT. tit. 36, § 1938(C) (2001) expressed no such
exceptions to the shareholder’s right to object.
Pennsylvania Greenfield v. Pennsylvania Insurance Guaranty Association, 256 Pa. Super. 136,
389 A.2d 638 (1978). A law firm which provided legal services to an insurance
company which was later liquidated could make a claim against the insurance
commissioner, as receiver, but could not recover from the Pennsylvania
guaranty fund.
Tennessee
Texas
McReynolds v. Weed, 1993 Tenn. App. LEXIS 321 (1993). Former directors of an
insurer placed in receivership filed counterclaim against the receiver, alleging
that the receiver had converted certain assets and was holding them illegally.
They sought injunctive relief and attorney’s fees and costs. The court held that
the directors were not entitled to an award of attorney’s fees in Tennessee in
the absence of a statute or contract specifically providing for such recovery.
Berkel v. Tex. Prop. & Cas. Ins. Guar. Ass’n, 92 S.W.3d 584 (Tex. App. 2002). The
court of appeals rejected the argument presented by the Texas Property and
Casualty Insurance Guaranty Association (“TPCIGA”) that a claim for attorney
fees could not be a “covered claim” as a matter of law in Texas. TPCIGA relied
on TEX. INS. CODE ANN. art. 21.28‐C, § 5(8), which provides that a “covered claim”
does not include attorney fees, expenses, or any pre‐judgment or postjudgment
interest that accrues subsequent to the determination that an insurer
is an impaired insurer. The court held that the provisions of TEX. INS. CODE ANN.
art. 21.28‐C, § 5(8) create a framework upon which a receiver may make
decisions about which claims were covered and at what amounts and did not
suggest an express prohibition to all claims for attorney fees. The receiver had
previously approved the Plaintiff’s claim for attorney fees as a “covered claim,”
and at no time had that decision been challenged in the receivership
proceeding. The court held that the receiver’s decision that the Plaintiff’s
attorney fees were a “covered claim” became final as a matter of law when the