Colo. SC affirms defense fees ruling in class action

By Jessica M. Karmasek | Sep 16, 2010


DENVER (Legal Newsline) - The Colorado Supreme Court has affirmed an appeals court ruling on attorney fees in a case involving a class action lawsuit brought against the city and county of Denver.

The lawsuit concerns alleged environmental contamination at Denver International Airport. The Court, in an opinion filed Monday, rejected an argument by the plaintiffs that a trial court must exclude fees and costs for work that may be useful in companion litigation. It was the third in a series of appeals involving the suit.

In the personal injury action filed pursuant to the state's Governmental Immunity Act, the plaintiffs -- including Terri Crandall, Joann Hubbard and others -- sought damages and injunctive relief against Denver, alleging injuries suffered from "environmental problems" occurring at the Denver airport, specifically Concourse B.

Justice Mary Mullarkey, who authored the opinion, writes that this is the second time the Court has reviewed a decision by the appeals court in "this long-running dispute."

The case has been dismissed for lack of subject matter jurisdiction. The present dispute concerns the award of costs and attorneys fees to the city and county of Denver.

On appeal, the plaintiffs argued that the award was not reduced enough to account for work by Denver's attorneys that would be useful in separate but related litigation between the parties in federal court.

On cross-appeal, Denver challenged the district court's conclusion that the award should be reduced at all on this basis.

The appeals court concluded that the district court erred in reducing the award and reversed the decision.

The Court, in its ruling, affirmed the appeals court's ruling and holds that a reduction cannot be permitted based on state statutes.

Mullarkey also writes that the Court's conclusion is "bolstered by the legislative history."

"Colorado appellate courts have twice reviewed the legislative intent as portrayed by the legislative history of sections 13-16-113(2) and 13-17-201. We have previously concluded that 'the legislature intended to award attorney fees in a narrow category of baseless tort cases, namely those cases that were so lacking in substance that they could not survive a motion to dismiss for failure to state a claim upon which relief could be granted,'" according to the opinion.

The plaintiffs argue that because the statutes are intended to have a "deterrent effect," they are compensatory and not punitive, and therefore, a court should not award fees and costs for work that will be useful in continuing litigation. The Court says that argument "lacks logic."

The Court, in its opinion, concludes that the "unambiguous nature" of the mandate is supported by legislative history and because of it, they cannot read into the statutes the exception the plaintiffs argue.

The Court wrote that it was important to note that the plaintiffs' arguments in favor of reducing fees and costs wasn't a question of the "reasonableness" of those fees and costs. The plaintiffs, they said, have never argued that Denver's request for attorneys fees was the product of unreasonable billing rates or inflated hours.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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