Fountaincourt Homeowners’ Assn. v. Fountaincourt Development, LLC

When an insurer covers negligence performed by an insured, and that insured is legally obligated to pay damages for negligence, then the insurer is obligated to pay those damages. Attorney fees will not be awarded if the motion to assert a right to get them comes after entry of a judgment on the merits.

The American Family Mutual Insurance Company (American) appealed a supplemental judgment which required payment of the unsatisfied portion of a judgment to the Fountaincourt Homeowners’ Association (the Association) for its insured’s (Sideco) negligence in constructing a housing development. American also appealed the award of attorney fees to the Association. The Court first held that, because the Association satisfied its prima facie burden to prove that Sideco was legally obligated to pay for damages resulting from their negligence which American covered, the trial court did not err in entering the supplemental judgment garnishing from American. The Court also held the trial court erred by awarding attorney fees to the Association because the motion to assert the right to attorney fees was erroneously allowed after a judgment on the merits had been entered. Supplemental judgment for garnishment against American affirmed. Supplemental judgment against American for attorney fees, costs, and disbursements reversed as to award of attorney fees; otherwise affirmed.