Revisiting the Recovery of Attorney Fees and Costs in Colorado
Publication year | 2004 |
Pages | 11 |
2004, April, Pg. 11. Revisiting the Recovery of Attorney Fees and Costs in Colorado
Vol. 33, No. 4, Pg. 11
The Colorado Lawyer
April 2004
Vol. 33, No. 4 [Page 11]
April 2004
Vol. 33, No. 4 [Page 11]
Articles
Revisiting the Recovery of Attorney Fees and Costs in
Colorado
by John R. Webb
by John R. Webb
John R. Webb
John R. Webb, Denver, was appointed to the Colorado Court of
Appeals February 1, 2002. At that time, he was senior counsel
to the Denver firm of Jacobs, Chase, Frick, Kleinkopf &
Kelley
This article examines general principles and describes recent
developments concerning the recovery of attorney fees and
costs. It also discusses various statutes and court rules
that afford some opportunity to shift attorney fees and
costs
Civil litigation involves significant costs in attorney fees
and other expenses. By shifting those costs to the opposing
party, the successful party avoids erosion of its gross
award. This article revisits general principles1 and examines
recent developments concerning recovery of attorney fees and
costs. It does not address recovery of either attorney fees
characterized as damages, which is a discretionary and
fact-intensive determination by the lower court,2 or attorney
fees in class actions.3
RECOVERING
ATTORNEY FEES
ATTORNEY FEES
Recovery of attorney fees requires an understanding of the
limitations of the American Rule and its exceptions.
Practitioners should be aware of the court rules and statutes
that permit recovery of fees.
The American Rule
Citing concerns over uncertainty in litigation, access to the
courts, and deference to the General Assembly, the Colorado
Supreme Court continues its strong adherence to the so-called
"American Rule," under which the prevailing party
must nevertheless pay its own attorney fees, unless a court
rule, statute, or contract provides otherwise.4 The Court
recently invalidated on public policy grounds an insurance
policy provision that required the insured to arbitrate the
claim, but allowed the insurer to relitigate its liability in
a civil action if the insured prevailed in arbitration.5
However, the Court declined to recognize a public policy
exception to the American Rule whereby the successful insured
could recover its attorney fees. Periodic legislative efforts
to make attorney fees recoverable by the prevailing party in
all civil actions have failed.
Shifting of Attorney
Fees by Contract
Fees by Contract
Freedom of contract includes the power to provide that the
prevailing party recovers attorney fees and other specified
expenses in litigation arising under the contract.6 In
addition to avoiding the American Rule, such clauses can
expand recoverable litigation expenses beyond those
"costs" typically awarded to the prevailing party
under Colorado Rule of Civil Procedure ("C.R.C.P."
or "Rule") 54(d) and various Colorado statutes, as
discussed below. No Colorado case requires that an attorney
fees clause protect both parties equally, and many contracts,
such as promissory notes and guarantees, do not. An attorney
fees clause also will entitle the prevailing party to fees
incurred on appeal.7
An attorney fees clause merits careful drafting because such
fees "should not be awarded based on a contractual
provision unless it plainly and unambiguously permits such an
award."8 In one case, although the contract
"entitled" the prevailing party to attorney fees,
on remand the prevailing party was allowed to seek fees, but
the lower court was not required to award them.9 Another case
was remanded to determine whether a provision giving the
prevailing party "legal expenses" included attorney
fees.10 An attorney fees clause in a contract does not
support a fee claim by a third-party beneficiary.11 However,
fees were awarded in litigation over a promissory note, which
represented the means of payment under a contract that
included an attorney fees clause, although the note itself
did not.12
Thus, the drafter should consider using stronger terms than
the language at issue in these cases: "the prevailing
party shall recover. . . ." The drafter also should
consider language such as "together with all internal
and out-of-pocket expenses of any kind relating to the
litigation"; a mere reference to recovering
"costs" may be interpreted more narrowly on the
basis of precedent under statutes and court rules that
address recovery of costs.
If the contract permits or requires alternative dispute
resolution, the drafter should consider both application of
the attorney fees clause to these proceedings and
recoverability of unique expenses, such as arbitration
fees.13 Application of the fees clause may be broadened
beyond the typical action for breach of contract by a phrase
such as "disputes arising under, or in any way relating
to, rights created by this contract," although no
Colorado case has addressed such language.
When applying attorney fees clauses, Colorado courts have
also adopted differing approaches to determining the
"prevailing party" where cases involve multiple
parties, multiple claims, or both. In one case, the court
looked at the judgments obtained by the various parties
rather than the overall trial results.14 In another case, the
court acknowledged, but did not mandate application of, the
"net judgment rule," under which the party in whose
favor the net final judgment is rendered recovers attorney
fees, although judgments were entered on both claim and
counterclaim.15 Thus, to reduce uncertainty, the drafter
should define "prevailing party."
Where a party rescinds a contract, a fee award under the
contract is not available.16 No Colorado case addresses
whether a contract could expressly provide otherwise. As
discussed below, numerous Colorado statutes provide for
recovery of attorney fees by prevailing parties in various
types of cases. Whether any of these provisions could be
waived by contract has not been resolved in Colorado.17
Judicially-Created Exceptions To the American Rule
The Colorado Supreme Court has recognized four
judicially-created exceptions to the American Rule.18 These
are: (1) creation of a common fund, (2) breach of fiduciary
duty or breach of trust, (3) bad faith, and (4) a wrongful
act causing litigation.
The common fund exception rests on principles of unjust
enrichment that require those who directly benefit from
litigation to share in its costs.19 Implicit in the doctrine
are requirements that the beneficiaries of the fund be
similarly situated and that, but for the plaintiff's
actions, they would have been forced to litigate themselves,
as in most class actions.20 For example, the exception has
been applied against subrogated insurance carriers who share
in recovery from or settlement with a tortfeasor.21
The exception generally does not obligate a third party (who
benefits from payment out of the fund created) to compensate
the attorney of the party in whose name the fund was created,
if the third party's right to be paid existed regardless
of creation of the fund.22 Also, some court of appeals cases
suggest that the party against whom fees can be recovered
must have had a right to intervene in the litigation that
produced the fund, but either chose not to do so or was not
given the opportunity.23
Under the second exception, the court is authorized, but not
required, to award attorney fees in a damages action
resulting from breach of fiduciary duty.24 For example, in
one case, fees were awarded against a father for imprudently
investing his minor children's money.25 The exception is
probably limited to actions involving both a breach of trust
and funds of a beneficiary.26 Denial of attorney fees has
been upheld where, to the beneficiary's knowledge, the
trustee had begun remedial action before the beneficiary
brought suit, and the trustee's prior actions were not
fraudulent.27
Under the bad faith exception, sometimes called
"obdurate behavior," attorney fees were awarded in
one case for a bad faith denial of having been served with
process that resulted in a sanction against the other
party.28 The exception is limited to bad faith in litigation,
not in the underlying transaction.29 A finding of bad faith
represents an exercise of the lower court's discretion.30
CRS §§ 13-17-101 et seq., discussed below, permits fee awards
based on groundless, frivolous, or vexatious claims or
defenses. A finding of groundlessness and frivolousness does
not alone constitute
either obdurate behavior or bad faith.31 Whether the statute preempts the bad faith exception has never been addressed in a published opinion.32 Also, the statute does not limit a claim for bad faith breach of insurance contract evidenced by the insurer's bad faith lawsuit against its insured.33
either obdurate behavior or bad faith.31 Whether the statute preempts the bad faith exception has never been addressed in a published opinion.32 Also, the statute does not limit a claim for bad faith breach of insurance contract evidenced by the insurer's bad faith lawsuit against its insured.33
The wrongful act creating the litigation exception recognizes
attorney fees as recoverable damages when a party's
wrongful act causes another party's involvement in
litigation with a third party. For example, attorney fees
were awarded against a realtor for negligently failing to
present a prospective tenant's offer to the landlord,
which resulted in the landlord's seeking damages against
a defaulting tenant.34 Fees may be awarded even if the
underlying litigation settled, as long as the settlement
terms were reasonable.35 However, the party seeking fees must
have been without fault.36 It is doubtful whether an attorney
fees award under any of these exceptions could be made
against the state because of the absence of express statutory
authority.37
Finally, certain types of cases probably continue to
represent exceptions to the American Rule, such as slander of
title,38 malicious prosecution,39 and, perhaps, vindication
of strong public policy.40 Some of these cases involve
attorney fees...
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