The Michigan Supreme Court recently held that a plaintiff waived her right to a jury regarding the award of attorney fees. In Barton-Spencer v. Farm Bureau Life Ins. Co. of Michigan (Mich. April 14, 2017), the plaintiff had signed an agreement stating that if the defendants were successful in future litigation, the plaintiff "agrees to reimburse [the defendants'] attorney fees and costs as may be fixed by the court in which suit or proceeding is brought" (emphasis added). All parties demanded a jury trial, and the jury subsequently found for defendants on their counterclaim and a portion of the plaintiff's breach of contract claim. The court later granted defendants' postjudgment motion seeking contractual attorney fees. The Court of Appeals reversed the trial court's decision to grant defendants contractual attorney fees because it found that the contractual language did not clearly show that the plaintiff waived her right to a jury regarding attorney fees. The Supreme Court disagreed and reversed the Court of Appeal's decision, stating, "The phrase 'fixed by the court' is not ambiguous. When the parties agreed to this provision, they agreed that the amount of attorney fees and costs would be fixed by a judge rather than a jury. In ordinary parlance, the word 'court' refers to judges." Contracting parties would be well-served by reviewing their boilerplate agreements in light of this decision and determining whether they adequately define jury rights.
Wolfson Bolton KochisBy