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Gebremedhin v. American Family Mutual Insurance Co.

United States District Court, D. Colorado

February 24, 2016

WELDESAMUEL GEBREMEDHIN, an individual, TERHAS DESTA, an individual, ABRHAM GIDAY, a minor, by and through his guardians and natural parents, Weldesamuel Gebremedhin and Terhas Desta, Plaintiffs,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant.

ORDER DENYING DISMISSED THIRD-PARTY DEFENDANTS’ MOTIONS FOR ATTORNEY FEES

CHRISTINE M. ARGUELLO United States District Judge

This matter is before the Court on two motions for attorney fees brought by dismissed Third-Party Defendants Special Kids, Special Families, Inc. (“SKSF”), Granite State Insurance Company (“GSIC”), and National Union Fire Insurance Company of Pittsburgh (“NUFIC”). (Doc. ## 178, 180). Because the Court finds that the third-party complaint was not primarily an action in tort, the motions for fees are denied.

I. BACKGROUND

The factual and procedural history of this case is fully set forth in the Court’s Order dismissing Defendant/Third-Party Plaintiff American Family Mutual Insurance Company’s (“American Family”) third-party complaint, which is incorporated herein by reference. (Doc. # 177.)

On May 12, 2014, American Family filed an amended third-party complaint, alleging claims for declaratory judgment, equitable subrogation, contribution, and breach of the covenant of good faith and fair dealing against GSIC and NUFIC and claims for declaratory judgment and subrogation against SKSF. (Doc. # 70 at 23-28.) Pursuant to Fed.R.Civ.P. 12(b)(6), this Court thereafter dismissed the third-party complaint. (Doc. # 177.)

There are now two motions for attorney fees before the Court:

a) SKSF

On April 10, 2015, SKSF filed a motion requesting attorney fees pursuant to Colo. Rev. Stat. § 13-17-201. (Doc. # 178.) Pursuant to D.C.COLO.LCivR 54.3, SKSF attorney Michael L. Hutchinson attached to the motion an affidavit concerning the reasonableness of his requested fees and comprehensive billing statements. (Doc. ## 178-1, 178-2, 178-3, 178-4.) On May 22, 2015, American Family responded to the motion, arguing that SKSF was not entitled to fees. (Doc. # 199.) SKSF thereafter replied. (Doc. # 211.)

b) GSIC and NUFIC

On April 10, 2015, GSIC and NUFIC filed a motion requesting attorney fees pursuant to Colo. Rev. Stat. § 13-17-201.[1] (Doc. # 180.) Pursuant to D.C.COLO.LCivR 54.3, GSIC and NUFIC attorney Lisa F. Mickley attached to the motion an affidavit concerning the reasonableness of her requested fees and a comprehensive billing statement. (Doc. ## 180-1, 180-2.) On May 22, 2015, American Family responded to the motion, arguing that GSIC and NUFIC were not entitled to fees or, in the alternative, that the fees were excessive and unreasonable. (Doc. # 200.) GSIC and NUFIC thereafter replied. (Doc. # 214.)

II. DISCUSSION

Colo. Rev. Stat. § 13-17-201 requires a trial court to award reasonable attorney fees to a defendant when it dismisses a tort action pursuant to Colo. R. Civ. P. 12(b).

The statute provides:

In all actions brought as a result of a death or an injury to person or property occasioned by the tort of any other person, where any such action is dismissed on motion of the defendant prior to trial under rule 12(b) of the Colorado rules of civil procedure, such defendant shall have judgment for his reasonable attorney fees in defending the action. This section shall not apply if a motion under rule 12(b) of the Colorado rules of civil procedure is ...

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