In any action against a surplus lines insurer pursuant to Section 1103 of this title, if the insurer has failed for thirty (30) days after demand prior to the commencement of the action to make payment in accordance with the terms of the contract of insurance or in accordance with Section 1115 of this title, and it appears to the court that the refusal was vexatious and without reasonable cause, the court may allow to the plaintiff or an aggrieved agency of this state a reasonable attorney fee and include the fee in any judgment that may be rendered in the action. The fee shall not exceed one-third (1/3) of the amount which the court or jury finds the plaintiff is entitled to recover against the insurer, but in no event shall a fee be less than One Hundred Dollars ($100.00). Failure of an insurer to defend any action shall be deemed prima facie evidence that its failure to make payment was vexatious and without reasonable cause. Added by Laws 1957, p. 257, § 1105, operative July 1, 1957. Amended by Laws 2010, c. 222, § 14, eff. Nov. 1, 2010; Laws 2011, c. 278, § 10 and Laws 2011, c. 360, § 10; Laws 2012, c. 45, § 8, emerg. eff. April 16, 2012.
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