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Etherton v. Owners Ins. Co.

United States District Court, D. Colorado

March 2, 2015

DONALD L. ETHERTON, Plaintiff,
v.
OWNERS INSURANCE COMPANY, a Michigan insurance company, Defendant

For Donald L. Etherton, Plaintiff: Chad Patrick Hemmat, Anderson Hemmat & McQuinn, LLC, Ethan Andrew McQuinn, Anderson Hemmat & McQuinn, LLC, Greenwood Village, CO.

For Owners Insurance Company, Defendant: Amanda Murray Burke, Gregory R. Giometti, Gregory R. Giometti & Associates, P.C., Denver, CO.

ORDER

PHILIP A. BRIMMER, United States District Judge.

This matter is before the Court on plaintiff's Affidavit of Attorneys Fees and Costs [Docket No. 111][1] and plaintiff's Motion to Supplement Request for Reasonable Fees and Costs Pursuant to Colo. Rev. Stat. § 10-3-1116 [Docket No. 150].

I. BACKGROUND

Plaintiff Donald L. Etherton brought this case against defendant Owners Insurance Company (" Owners" ) following a motor vehicle accident on December 19, 2007. Docket No. 70 at 4, ¶ 1. Plaintiff, who was injured in the accident, settled with the at-fault driver for $250,000. Id. ¶ 4. Plaintiff then sought uninsured/underinsured motorist (" UIM" ) coverage from defendant, pursuant to an insurance policy with a $1,000,000 limit. Docket No. 70 at 4, ¶ 3. Defendant offered to settle the claim for $150,000. Docket No. 70 at 2. Plaintiff requested that defendant provide an explanation for the amount of the settlement offer and requested that defendant tender the $150,000 offer as the " undisputed" portion of his claim. Defendant refused both requests and this litigation followed. Docket No. 23 at 8.

Plaintiff filed this case in the District Court for the County of Boulder, Colorado, on March 9, 2010, alleging breach of insurance contract, willful and wanton breach of insurance contract, deceptive trade practices, and unreasonable delay or denial of an insurance claim in violation of Colo. Rev. Stat. § § 10-3-1115, 1116. Docket No. 1-2 at 4-10, ¶ ¶ 27-80. Defendant removed the case to this Court on April 21, 2010. Docket No. 1.

On January 14, 2013, the Court began a six-day jury trial on plaintiff's claims for breach of contract and unreasonable delay or denial of benefits under Colo. Rev. Stat. § 10-3-1116. Docket No. 100. On January 24, 2013, the jury returned a verdict in favor of plaintiff on both of his claims. Docket No. 106-1 at 2.

On February 14, 2013, plaintiff's counsel, Chad Hemmat, filed an Affidavit of Attorneys Fees and Costs. Docket No. 111. The affidavit was not accompanied by a formal motion. See id. Mr. Hemmat noted in his affidavit that plaintiff's counsel " did not undertake contemporaneous billing and has accordingly gone back through and given his best good faith effort of the time and charges." Id. at 2, ¶ 5. Plaintiff's affidavit sought $193,200.00 in attorneys' fees for the work of three attorneys: Mr. Hemmat (365.5 hours at $300 per hour), Ethan McQuinn (411.75 hours at $200 per hour), and Andrew Phillips (6 hours at $200 per hour).[2] See id. at 2-7. Additionally, plaintiff sought $58,396.75 in costs. Id. at 10. Defendant opposed plaintiff's request for fees, arguing that it was procedurally improper and that plaintiff did not provide adequate documentation for either the hours billed or the costs claimed. See Docket No. 121.

Plaintiff also filed a Motion to Supplement Request for Reasonable Fees and Costs Pursuant to Colo. Rev. Stat § 10-3-1116 [Docket No. 150]. In his motion, plaintiff requests that the Court grant the fees sought in his earlier affidavit, and also seeks additional attorney's fees that he incurred briefing multiple post-trial motions, including plaintiff's successful Motion to Amend or Alter Judgment, Docket No. 110, and defendant's Motion for New Trial. Docket No. 117. The supplemental motion seeks an additional $13,170.00 in fees for the work of two attorneys: Mr. McQuinn (19.5 hours at $200 per hour), and Jason Alleman (46.35 hours at $200 per hour).[3] In response to the supplemental motion, Owners incorporates by reference its arguments in response to plaintiff's affidavit, and seeks limited discovery and an evidentiary hearing on the issue of recoverable costs and attorney fees. See Docket No. 154 at 1.

II. ANALYSIS

" 'Our basic point of reference' when considering the award of attorney's fees is the bedrock principle known as the 'American Rule': Each litigant pays his own attorney's fees, win or lose, unless a statute or contract provides otherwise." Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 252-53, 130 S.Ct. 2149, 176 L.Ed.2d 998 (2010).

Plaintiff seeks attorneys' fees pursuant to Colo. Rev. Stat. § 10-3-1116(1), which provides: " A first-party claimant as defined in section 10-3-1115[4] whose claim for payment of benefits has been unreasonably delayed or denied may bring an action in a district court to recover reasonable attorney fees and court costs and two times the covered benefit."

Owners does not contest that plaintiff is a first-party claimant as defined by Colo. Rev. Stat. § 10-3-1115 and does not deny that plaintiff is entitled to attorneys' fees as the prevailing party in an action brought pursuant to Colo. Rev. Stat. § 10-3-1116. Instead, Owners argues that plaintiff's motion is procedurally defective and that the hours claimed by ...


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