However, the lease provisions merely limit defendants' liability for damages resulting from failure of title, it does not extend to an award of attorney fees permitted by a common law exception. Here, the state's title did not fail. Furthermore, we agree with the trial court's determination that nothing in the language of the leases obligated plaintiffs to defend the state's title or clearly indicated an intent that plaintiffs bear the burden of the expenses required to establish the state's title to the mineral rights. Therefore, the trial court did not abuse its discretion in ordering the state to pay a portion of plaintiffs' attorney fees incurred in bringing the interpleader action. I concur, but write separately to express my concerns about the legal support for the rule the majority announces today, and to invite our Supreme Court to clearly resolve this issue.
Exceptions are to be narrowly construed.
Furthermore, to recover attorney fees under a common-law exception, that exception must be generally recognized. As the majority recognizes, the statement in GRP that attorney fees are recoverable in interpleader actions was merely dicta, lacking the force of an adjudication. This leaves only Star Transfer . In that case, our Supreme Court was not presented with the issue whether interpleader actions constitute a generally recognized common-law exception to the American rule. Although the Court did in fact allow an award of attorney fees, Star Transfer , supra at 119-120, the Court did not hold that the American rule is inapplicable to interpleader actions.