American Family Insurance Group v. Bergeson et al
Filing
138
ORDER denying 134 Motion for Attorney Fees. Signed by Judge David G Campbell on 6/19/2012.(NVO)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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American Family Mutual Insurance
Company,
No. CV09-0360 PHX DGC
ORDER
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Plaintiff,
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v.
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Milo Bergenson, et al,
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Defendants.
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Plaintiff has renewed its motion for attorneys’ fees in the amount of
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$122,835.50 (Doc. 134) after the Ninth Circuit affirmed the ruling of this Court
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(Doc. 133-1). The motion is fully briefed. Docs. 128, 134-136. No party has requested
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oral argument. The Court will deny the motion.
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Plaintiff seeks a fee award pursuant to A.R.S. § 12-341.01(A). Under Arizona
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law, a trial court has discretion in awarding attorneys’ fees and should consider several
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factors when making its decision. Velarde v. PACE Membership Warehouse, Inc., 105
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F.3d 1313, 1319-20 (9th Cir. 1997); Associated Indemn. Corp. v. Warner, 694 P.2d 1181,
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1184 (Ariz. 1985) (en banc); Uyleman v. D.S. Rentco, 981 P.2d 1081, 1086 (Ariz. Ct.
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App. 1999). Among those factors, the court should consider whether a fee award “would
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cause undue hardship.” Woerth v. City of Flagstaff, 808 P.2d 297, 305 (Ariz. Ct. App.
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1990).
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Defendants have submitted two affidavits explaining the financial condition of the
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parties who would bear any award of attorneys’ fees to Plaintiff. Doc. 135-2 at 3, 5.
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Amy Lyn and Christopher Bergeson both assert that they cannot afford to pay fees or
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costs. Doc. 135-2 at 3, 5. Amy Lyn is sixteen and unemployed. Doc. 135-2 at 3.
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Christopher is twenty-one and earns $2,600 per month as a welder. Doc. 135-2 at 5.
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They currently live with their father in Tucson, Arizona. Doc. 135-2 at 3, 5. Plaintiff
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states that Defendants still have a pending suit against West Frontier Condominiums
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HOA which may yield funds to pay the attorneys’ fees requested. Docs. 128 at 6,
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136 at 4. But Plaintiff provides no information about the likelihood of success in that
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lawsuit or the amount of any possible recovery. Docs. 128 at 6, 136 at 4. Given
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Defendants’ current financial situation, the Court cannot conclude that the mere prospect
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of another recovery alleviates the financial hardship that would be imposed by a fee
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award. The Court therefore concludes, in its discretion, that an award of fees should not
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be made under A.R.S. § 12-341.01.
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IT IS ORDERED that Plaintiff’s renewed motion for award of attorneys’ fees
(Doc. 134) is denied.
Dated this 19th day of June, 2012.
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