Empire Fire and Marine Insurance Company v. Bittermann-Halbreich et al

Filing 35

ORDER denying without prejudice Pla's 31 Motion for Attorney Fees. Signed by Judge Mary H Murguia on 2/24/09.(KSP) Modified on 2/27/2009 TO ADD TEXT (KMG).

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Empire Fire and Marine Insurance) ) Company, ) ) Plaintiff, ) ) vs. ) ) Judita Bittermann-Halbreich; and Klaus) ) Bloch, ) ) Defendants. )

No. CV 07-675-PCT-MHM ORDER

Pending before the Court is Plaintiff Empire Fire and Marine Insurance Company's ("Empire's") Motion for Award of Attorney's Fees. (Doc. # 31) On March 29, 2007, Empire filed this declaratory judgment action seeking a judicial determination that there was no coverage under the Empire Policy for any claims asserted by Defendant Judita Bittermann-Halbreich in Coconino County Civil Cause No. CV-2006-0645. Defendant moved to dismiss the complaint on the grounds that the Court should exercise its discretion to decline jurisdiction in favor of the parallel state court action. (Doc. # 12) On September 8, 2008, the Court entered judgment in Defendant's favor dismissing the complaint. (Doc. # 29) Thereafter, Defendant moved for an award of attorney's fees in the amount of $19,846.50. Plaintiff filed a Response, arguing, among other things, that because Defendant has not yet made a recovery under her contingency fee agreement, she cannot recover attorney's

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fees. In her Reply, Defendant agrees with Plaintiff that fees should not be awarded until there is a recovery, see Nationwide Mut. Ins. Co. v. Stevens, 166 Ariz. 372, 802 P.2d 1071 (Ariz. App. 1990), and requests that the Court defer ruling on the attorney fees application until the underlying case is resolved. Accordingly, IT IS ORDERED denying without prejudice Plaintiff's Motion for Award of Attorney's Fees. (Doc. # 31) Plaintiff may renew her request for attorney's fees in the event she is the prevailing party on the underlying claim. DATED this 24th day of February, 2009.

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