¶1concurring specially:
¶2I concur in the operative part of the Court’s opinion which “vacate[s] the order awarding attorney fees and remand[s] that issue to the trial court for reconsideration in light of our decision in Ross v. Coleman, 114 Idaho 817, 836, 761 P.2d 1169, 1188 [(1988)]....” Ante at 686, 778 P.2d at 808. Ross v. Coleman held that the district court should not consider whether a party failed to engage in good faith settlement negotiations in determining whether to impose costs and attorney fees under I.R.C.P. 54. See also Anderson v. Anderson, Kaufman, Ringert & Clark, 116 Idaho 359, 775 P.2d 1201 (1989).
¶3I further concur in the majority’s conclusion that the raising of a contributory negligence defense, when there was no factual basis for asserting that defense, is grounds for asserting attorney fees under I.C. § 12-121, and I.R.C.P. 54(e)(1) for the attorney fees incurred in meeting such a foundationless defense.
¶4I further concur in Part II of the Court’s opinion.
¶5However, I cannot concur in that part of the majority opinion which suggests that “defendants’ refusal to advance even one farthing toward plaintiff’s medical bills” is relevant in determining whether or not the case was defended frivolously, unreasonably or without foundation under Rule 54(e)(1). The fact that I.C. § 41-1840 permits a defendant to advance payments without admitting liability or without waiv*687ing a defense does not authorize a conclusion that such a defendant can or should be penalized by the award of attorney fees for not advancing a portion of the plaintiffs damages. This suggestion will only further complicate the award of attorney fees under I.C. § 12-121 and I.R.C.P. 54(e)(1), a procedure which now often requires a second trial after the first one. Determining when an item of damages is sufficiently and adequately established as to require a defendant to tender that part of the damages under pain of having to pay the other party’s attorney fees allocable to proving that particular item is not required by I.C. § 41-1840, or any other legal authority, to my knowledge. Certainly, the majority opinion cites no authority for that proposition. The suggestion in the Court’s opinion is erroneous and will greatly complicate an already difficult problem.