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Spokas v. American Family Mutual Insurance Co.

United States District Court, D. Colorado

November 2, 2015



Wiley Y. Daniel Senior United States District Judge


This matter is before me on Plaintiff’s Motion for Judicial Review of Clerk’s Taxation of Costs (ECF No. 122). Plaintiff seeks an award of costs in the amount of $40, 896.23 in addition to the $11, 426.74 in costs previously awarded by the Clerk of the Court pursuant to 28 U.S.C. § 1920. For the reasons stated below, the motion is granted in part and denied in part.

On April 6, 2015, the parties tried this bad faith breach of insurance contract case to a jury. The jury found in favor of Plaintiff as to all three of her claims: (1) breach of insurance contract; (2) common law bad faith; and (3) violation of Colo. Rev. Stat. §§ 10-3-1115 and 1116. On July 1, 2105, Judgment was entered in favor of the Plaintiff and against the Defendant in the amount of $2, 209, 281.25.[1] (ECF No. 115).

On July 1, 2015, Plaintiff submitted her proposed Bill of Costs (ECF No. 116), seeking $58, 530.84. After holding a cost hearing, the Clerk of the Court awarded Plaintiff $11, 426.74 in taxable costs pursuant to 28 U.S.C. § 1920. The Clerk of the Court’s award did not consider allowable costs pursuant to Colo. Rev. Stat. § 10-3-1116(1). Plaintiff challenges that determination in the pending motion. In response, Defendant argues that Plaintiff may only recover the limited costs enumerated in 28 U.S.C. § 1920. Alternatively, Defendant challenges specific itemized costs, suggesting that these costs are both unreasonable or unnecessary and incurred solely for the convenience of counsel.


As a threshold matter, I must determine the appropriate legal standard for evaluating Plaintiff’s Bill of Costs. Here, if the recovery of costs is governed solely by Fed.R.Civ.P. 54(d) and 28 U.S.C. § 1920, many of Plaintiff’s claimed costs cannot be recovered. However, should Colo. Rev. Stat. § 10-3-1116(1) apply, Plaintiff’s requested costs may, in large part, be recoverable.

Fed. R. Civ. P. 54(d)(1) provides that “[u]nless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney's fees-should be allowed to the prevailing party.” Recoverable costs under Rule 54(d)(1) are limited to the expenses enumerated in 28 U.S.C. § 1920, and include fees for transcripts necessarily obtained for use in the case, fees and disbursements for printing and witnesses, and fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case. See Sorbo v. United Parcel Service, 432 F.3d 1169, 1179 (10th Cir. 2005); see Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987). Although Rule 54(d) creates a presumption that costs should be awarded to the prevailing party, the taxing of costs is within the sound discretion of the trial court. See Allison v. Bank One-Denver, 289 F.3d 1223, 1248 (10th Cir. 2002).

Here, Plaintiff seeks additional costs not allowable under Rule 54(d) pursuant to Colo. Rev. Stat. § 10-3-1116(1). The statute provides that when an insurer unreasonably delays or denies a claim for a covered benefit, an insured party “may bring an action in a district court to recover reasonable attorney fees and court costs and two times the covered benefit.” Colo. Rev. Stat. § 10-3-1116(1) (emphasis added). In this case, the jury concluded that the Defendant unreasonably delayed and/or denied payment of UM benefits in the full amount of Plaintiff’s accident-related damages. Consistent with my prior order awarding attorney fees, I find that Colo. Rev. Stat. § 10-3-1116(1) provides for an award of costs to an insured party who proves that an insurer unreasonably delayed or denied a claim for a covered benefit. See Garcia v. Wal-Mart Stores, Inc., 209 F.3d 1170, 1176 (10th Cir. 2000) (holding that to the extent that a Colorado statute authorizes the award of actual costs other than those costs authorized by a federal statute or rule, those costs are not barred by Fed.R.Civ.P. 54(d)(1)); Infant Swimming Research, Inc. v. Faegre & Benson, LLP, 2008 WL 5044501 (D. Colo. Nov. 20, 2008) (holding that state statutes regarding award of costs to successful litigants control in diversity actions); Watson v. Dillon Cos., 2013 WL 6023692 (D. Colo. Nov. 13, 2013); Home Loan Inv. Co. v. St. Paul Mercury Ins., 2014 WL 6723965 (D. Colo. Nov. 25, 2014) (holding that costs are awardable under Colo. Rev. Stat. § 10-3-1116 in a federal diversity action to the extent that they do not conflict with federal law).

While Colo. Rev. Stat. § 10-3-1116(1) does not include its own definition of costs, Colorado courts have held that items such as: (1) costs for transcripts necessarily obtained for use in the case; (2) photocopy costs; (3) deposition costs; (4) mileage; (5) expert witness fees; and (6) computerized research expenses constitute costs under the general costs statute. See Colo. Rev. Stat. § 13-16-122. However, in awarding costs to Plaintiff, I use my discretion to determine whether they are reasonable and necessary. Id.


A. Expert Witness Fees

Plaintiff seeks $26, 065.00 in expert witness fees. Plaintiff itemizes her expert witness fees as follows: $2, 440.00 for attorney fees expert, Joe Mellon; $7, 025.00 for insurance bad faith expert, Prof. Garth Allen; $9, 375.00 for treating spinal surgeon, Dr. Chad J. Prusmack; $225.00 for a treating neuropsychologist, Dr. Stephen Schmitz; and $2, 000.00 for Ms. Spokas’s primary medical provider, Dr. Levinson. (Pl’s Mot. at 10).

First, Defendant objects to fees attributable to Mr. Mellon, arguing that Mr. Mellon’s affidavit “contains language that is very similar to” the affidavits of both Mr. Rosenberg and Mr. Jordan, thus, retention of Mr. Mellon to sign a redundant affidavit “is not reasonable or necessary.” (Pl’s Mot. at 6). I find no merit to Defendant’s objection. It was both reasonable and necessary for the Plaintiff to retain an expert to opine and substantiate Plaintiff’s request for attorney fees, thus these costs are awardable. See Stresscon Corp. v. Travelers Property Cas. Co. of America, Nos. 11CA1239 & 11CA1582, 2013 WL 4874352, at *22 (Colo.App. Sept. 12, 2013) (holding that Plaintiff was ...

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