United States District Court, D. Colorado
ORDER CONCERNING MOTION FOR ATTORNEY FEES
ROBERT E. BLACKBURN, District Judge.
This matter is before me on the Plaintiff's Motion for Attorney Fees [#280] filed October 8, 2013. The defendant filed a response [#300], and the plaintiff filed a reply [#306]. I grant the motion in part and deny it in part.
On April 4, 1998, the plaintiff, Roberta Folks, was a pedestrian standing in a parking lot when she was struck by the left side mirror of a 1997 Plymouth Neon driven by Charles McCune. Ms. Folks was injured in the accident. Mr. McCune was insured under a policy issued by the defendant, State Farm Mutual Automobile Insurance Company (State Farm). The policy is controlled by the Colorado Auto Accident Reparations Act, part 7 of article 4 of title 10, C.R.S. (CAARA), repealed by §10-4-726, C.R.S. (2002), effective July 1, 2003.
At the time of the accident, the CAARA required insurers to provide a minimum level of benefits known as personal injury protection or PIP benefits. Basic PIP benefits are defined in §10-4-706, C.R.S. After the accident, State Farm promptly paid to Ms. Folks the basic PIP benefits that were due to her under the policy. Thus, basic PIP benefits are not at issue in this case. Ms. Folks claimed in this case that she is entitled also to additional PIP benefits known as APIP benefits. At the relevant times, §10-4-710, C.R.S., required insurance companies to offer optional APIP benefits with each auto insurance policy. Policy purchasers could opt to purchase APIP coverage and to pay an additional premium for that coverage.
In the course of this case, the State Farm policy was reformed judicially to provide APIP coverage to Ms. Folks. Addressing the claim of Ms. Folks that she is entitled to but was denied APIP benefits under the State Farm policy purchased by Mr. McCune, the jury found in favor of Ms. Folks on her breach of contract claim, her common law bad faith breach of insurance contract claim, and her statutory bad faith breach of insurance contract claim, and awarded damages. In essence, the jury found that State Farm failed to pay APIP benefits when due. According to Ms. Folks, this finding entitles her to a mandatory award of attorney fees under §10-4-708, C.R.S.
II. APPLICABILITY §10-4-708, C.R.S. (2002)
Section 10-4-708(1.7)(c) provides for an award of attorney fees to an insured who recovers benefits under the statute. Ms. Folks seeks an award of attorney fees under this statute. State Farm argues that the provisions of §10-4-708 are not applicable to a case, like this case, in which only APIP benefits are recovered because §10-4-708 does not mention the statute that defines APIP benefits and does not mention APIP benefits in any other way.
In an earlier case involving only APIP benefits, I held that the attorney fees provisions of §10-4-708 are not applicable to a claim solely for APIP benefits under §10-4-710. Fincher ex rel. Fincher v. Prudential Prop. & Cas. Ins. Co., No. 00-cv-02098-REB-MJW, 2008 WL 901534, *2 (D. Colo. Mar. 31, 2008), aff'd, 374 F.Appx. 833 (10th Cir. 2010). Addressing Fincher on appeal, the United States Court of Appeals for the Tenth Circuit expressed significant doubt about my holding that §10-4-708 is not applicable to a claim solely for APIP benefits under §10-4-710.
Fincher is correct that the Colorado Court of Appeals has applied provisions in CAARA which explicitly refer only to basic PIP benefits under § 10-4-706 to APIP benefits under § 10-4-710 as well. See Brennan [ v. Farmers Mutual Insurance Co. ], 961 P.2d  at 553-54 [(Colo.App. 1998)]; see also Zahner v. Am. Family Mut. Ins. Co., 179 P.3d 98, 102-03 (Colo. Ct. App. 2007); DiCocco v. Nat'l Gen. Ins. Co., 140 P.3d 314, 318-19 (Colo. Ct. App. 2006). Given these cases, we are hesitant to predict whether the Colorado Supreme Court would adopt the analysis of the district court here.
Fincher ex rel. Fincher v. Prudential Prop. & Cas. Ins. Co., 374 F.Appx. 833, 845-46 (10th Cir. 2010).
Ms. Folks notes also that on the issue of treble damages, State Farm has conceded that §10-4-708 is applicable in this case. Addressing the motion [#264] of Ms. Folks to amend the judgment to provide for treble damages, State Farm conceded that, under §10-4-708, Ms. Folks was entitled to trebling of any amount awarded for unpaid APIP benefits. Response [#268], pp. 8-9. Nothing in the statute would make its provisions applicable for the purpose of treble damages but not for the purpose of an award of attorney fees. An Amended Final Judgment [#279] was entered awarding treble damages to Ms. Folks under §10-4-708.
Given the law cited by the Tenth Circuit in Fincher, and considering the concession of State Farm that §10-4-708 is applicable to this case, I conclude that §10-4-708 is applicable to this case and that Ms. Folks is ...