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Midland Risk Management Co. v. Watford6/30/1994
cisions, we find them persuasive. Midland, however, distinguishes Rose and Dorr, arguing that in both these cases the insurer knew the identity of its insured and could have discovered the fraud prior to the accident had it more thoroughly investigated the insured's driving history.
While we might agree that here Midland had no reasonable opportunity to discover the fraud prior to the accident, this fact is not enough to sway our Conclusion. The legislature and the courts of this state have expressly stated that the Financial Responsibility Act must be liberally construed to foster its main objective of making available to automobile accident victims the fullest benefits of insurance coverage. Geyer v. Reserve Ins. Co., 8 Ariz. App. 464, 447 P.2d 556 (1968). If inequity to insurers results, it is a matter that must be taken up with the legislature. Accordingly, we conclude that A.R.S. § 28-1170(F)(1) mandates coverage following an accident with injuries or damage notwithstanding the insurer's inability to discover fraudulent representations made in the insurance application. Our holding accords with decisions of other jurisdictions that have considered similar cases. See e.g. Barrera v. State Farm Mut. Auto. Ins. Co., 71 Cal.2d 659, 456 P.2d 674, 79 Cal.Rptr 106 (1969); Safeway Ins. Co. v. Harvey, 36 Ill.App.3d 388, 343 N.E.2d 679 (1976); American Underwriters Group v. Williamson, 496 N.E.2d 807 (Ind.App. 3 Dist. 1986); Continental Western Ins. Co. v. Clay, 248 Kan. 889, 811 P.2d 1202 (1991); Fisher v. New Jersey Automobile Full Ins. Underwriting Assoc., 224 N.J.Super. 552, 540 A.2d 1344 (1988); Allstate Ins. Co. v. Matthews, 40 Misc. 2d 409, 243 N.Y.S.2d 114 (1963); Aetna Casualty & Surety Co. v. O'Connor, 8 N.Y.2d 359, 170 N.E.2d 681, 207 N.Y.S.2d 679 (1960); Odum v. Nationwide Mutual Ins. Co., 101 N.C.App. 627, 401 S.E.2d 87 (1991). See also 7 Am.Jur.2d, Auto Insurance § 37 (1980); C.C. Marvel, annotation, Rescission or Avoidance for Fraud or Misrepresentation of Compulsory, Financial Responsibility, or Assigned Risk Automobile Insurance, 83 A.L.R.2d 1104 (1962).
Attorneys' Fees
Appellees request attorneys' fees and costs incurred in the trial court pursuant to A.R.S. § 12-341.01 and ask that we remand this matter for the court to determine the amount of attorneys' fees recoverable. We decline to do so.
The record and briefs reflect that the Watfords at no time prior to the entry of judgment requested fees, not even in their answer to Midland's complaint. Despite this fact, the trial court awarded the Watfords attorneys' fees in a second judgment dated December 14, 1992. This judgment was subsequently vacated when the court was made aware that the notice of appeal had been previously filed. See Trebilcox v. Brown & Bain, P.A., 133 Ariz. 588, 653 P.2d 45 (App. 1982) (trial court may not award attorneys' fees after the filing of a notice of appeal), overruled on other grounds, Barmat v. John and Jane Doe Partners A-D, 155 Ariz. 519, 747 P.2d 1218 (1987).
The Watfords concede that they did not comply with Rule 3.7(e)(1), Local Rules of Practice for Maricopa County, 17B A.R.S., which requires that a claim for attorneys' fees pursuant to A.R.S. § 12-341.01 be made "in the pleadings, in the joint pretrial statement, or by written notice filed and served prior to the trial or other determination on the merits of the cause." Despite their inaction, they assert that their noncompliance should not prohibit them from a "common and universally accepted award of attorney's
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