¶1 The only issue presented on appeal is the correctness of the trial court in awarding attorney fees pursuant to 36 O.S.Supp. 1977 § 3629 (B). ¹ The insured, Oliver's Sports Center, Inc. [appellee] was awarded $160,000.00, the total amount of a fire insurance policy, on its business. The jury also awarded $20,000.00 compensatory damages [615 P.2d 293] for the bad faith of the insurer, National Standard Insurance Company [National], [appellant], for denying the claim.

¶4 The insurer asserts the court awarded attorney fees by calculating the amount normally derived from a contingent fee contract. It is contended where the court has the duty to set a reasonable attorney fee many factors must be considered, and it is unreasonable to base the award solely on customary contingent fee contracts. The insured counters by arguing that the $60,000 fee was a reasonable and proper fee; that it was determined on a variety of criteria; and that the fee was not based merely on a contingent fee calculation. ²

[615 P.2d 294]

¶5 The insurer's primary thrust is that it was the attorney's testimony that he spent 345.5 hours on the case which reflects an hourly rate of $173.66. It is contended that the hourly rate should have been from $60.00 to $76.00 per hour which would have resulted in a fee of from $20,730.00 to $25,912.50. There is no argument or dispute raised by the insurer concerning the time spent by the insured's attorney.

¶6 The general agreement in all jurisdictions is that the time and labor spent by the attorney in performing services for which compensation is sought is an important factor to be considered in setting a reasonable fee. However, it is also commonly agreed that the time element must be considered in connection with other factors. Fees cannot fairly be awarded on the basis of time alone. The use of time as the sole criterion is of dubious value because economy of time could cease to be a virtue; and inexperience, inefficiency, and incompetence may be rewarded to the detriment of expeditious disposition of litigation.³ The litigation risk factor must be considered. Although the court initially looks to the hourly rate for comparable representation where compensation is guaranteed, it must adjust the basic hourly rate where compensation is contingent by assessing the likelihood of success at the outset of the representation. ⁴

¶7 The criteria for the awarding of a reasonable attorney's fee in the absence of a contract or a statute fixing the amount were clearly delineated in State ex rel. Burk v. City of Oklahoma City, 598 P.2d 659, 661 (Okl. 1979).⁵ This Court held that the proper procedure to be followed by trial courts in establishing a reasonable attorney fee is to determine the hourly compensation on an hourly rate basis and to add an [615 P.2d 295] additional amount based on the following guidelines.⁶

¶9 Although the trial court did not follow the rationale of National Ass'n. of Reg. Med. Prog., Inc. v. Weinberger, 396 F. Supp. 842 (D.C. 1975), ⁷ cited in the Burk opinion, which requires the computations of a strict hourly fee, we find that under the law as it existed at the time of the hearing on January 9, 1979, the court properly exercised its discretion when it considered various factors in arriving at the amount of attorney fee. ⁸

¹ It is provided by 36 O.S.Supp. 1977 § 3629 (B):

² The insured cites the remarks of the trial court:

³ See Annot., "Amount of Attorneys' Compensation In Absence Of Contract Or Statute Fixing Amount," 57 A.L.R.3d 475 (1974) for cited cases. See also Hornstein, "Legal Therapeutics: The Salvage Factor In Counsel Fee Awards," 69 Harv.L.Rev. 658 (1956).

⁴ The litigation risk factor is ably discussed in City of Detroit v. Grinnell Corp., 495 F.2d 448, 471 (2nd Cir. 1974); See also Berger, "Court Awarded Attorney Fees; What Is Reasonable?" 126 U.Pa.L.Rev. 281, 325 (Dec. 1977). Berger reduces the determination of reasonable attorney fees to be set by the trial court to three essentially factual questions which can be reviewed by appellate courts as well as by lawyers and litigants:

⁵ See also 5 O.S. 1971 Ch. 1, App. 3, DR. 2-106 which lists the guidelines as:

⁶ These guidelines were initially promulgated by Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) and adopted in Evans v. Sheraton Park Hotel, 164 U.S.App.D.C. 86, 96, 503 F.2d 177, 187 (1974).

⁷ In Weinberger, the court said:

⁸ See note 2, supra.

¶3 Whenever in a common-law action triable to a jury the statute authorizes counsel fee to be awarded to the prevailing party, either as an additional element of recoverable damage or as a taxable item of costs, the amount of the fee so to be allowed is a question of fact for submission to the trier in the same manner as any other fact arising in the case.¹ This principle, first announced by the Kansas court in Merrill, ² was expressly adopted by this court in Holland Banking Co. v. Dicks.³ It governs here. The counsel-fee issue was one for the jury. Since by its voluntary submission to the court, the parties - either as a conscious strategy choice or otherwise - waived their right to trial by jury, the case stands before us for review by the standards applicable to common-law proceedings in error. ⁴

¶4 Whenever a jury is waived and a cause, or an issue, is tried to the court, the trial court's resolution of facts has the very same force and effect as that which is to be accorded a verdict of a properly-instructed jury. If the resolution is effected by a general finding, that finding will be deemed to comprise within it a favorable decision upon all the essential elements necessary to support it. The trial judge's verdict so rendered, which is conclusive in law upon the Supreme Court with respect to all disputed issues of fact resolved in the case, may not be disturbed on review if there is any competent evidence which reasonably tends to support it. ⁵

¶6 The record does not demonstrate clearly that private-contract standards governed the judge's decision. I am hence obliged to test the "excessiveness" of the verdict by common-law standards. It is so "flagrantly outrageous and extravagant as to clearly show passion, partiality, prejudice or corruption"?⁶ An affirmative answer to the question so posed would not be legally correct in view of the careful findings and the evidence adduced.

¹ 12 O.S. 1971 § 556 ; Missouri Pac. Ry. Co. v. Merrill, 40 Kan. 404, 19 P. 793 [1888].

² Supra note 1.

³ 67 Okl. 228, 170 P. 253, 256 [1918].

⁴ 12 O.S. 1971 § 591 ; First State Bank of Noble v. McKiddy, 206 Okl. 57, 240 P.2d 1103 [1952]; Kansas, O. & G. Ry. Co. v. Searcy, 206 Okl. 1, 240 P.2d 440 [1952]; Givens v. Western Paving Co., Okl., 261 P.2d 450 [1953]; Davis v. Pumpco, Inc., Okl.App., 519 P.2d 557 [1974].

⁵ Elwood Oil & Gas Co. v. Gano, 76 Okl. 287, 185 P. 443 [1919]; Nations v. Stone, 92 Okl. 18, 217 P. 1031 [1923]; Young v. Seely, Okl., 366 P.2d 951, 953 [1961]; Wattie Wolfe Co. v. Superior Contractors, Inc., Okl., 417 P.2d 302 [1966]; Pracht v. Oklahoma State Bank, Okl., 592 P.2d 976 [1979]. See also, Spiller v. Massey & Moore, Okl., 406 P.2d 467, 471 [1965].

⁶ Marland Refining Co. v. Harrel, 167 Okl. 548, 31 P.2d 121 [1934].