Exterior Experts, Inc. v. Allstate Vehicle and Property Insurance Company

Filing 44

ORDER granting 40 Motion for Attorney Fees by Judge R. Brooke Jackson on 11/16/20.(jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 19-cv-01566-RBJ
EXTERIOR EXPERTS, INC.,
Plaintiff,
v.
ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY,
Defendant.

ORDER on ATTORNEY’S FEES and COSTS

This is an insurance coverage case. On May 8, 2017, the home of Elda Munoz was
damaged by wind and hail. She retained the plaintiff, Exterior Exports, Inc., to perform repair
work. Allstate paid most of the repair costs. Nevertheless, Exterior Experts obtained an
assignment of Ms. Munoz’s insurance claim and sued Allstate, seeking double damages and
attorney’s fees due to Allstate’s allegedly unreasonable delay or denial of paying the full amount
claimed for the repairs. However, plaintiff’s counsel later withdrew, citing unspecified grounds
under the rules of professional conduct, and plaintiff thereafter neither prosecuted nor dismissed
its claim.
On February 11, 2020 the Court issued an order to show cause why the case should not
be dismissed for failure to prosecute and failure to comply with a court order. Plaintiff did not
respond to the Court’s order to show cause. The defendant then filed a motion for a summary
judgment, and as a sanction for plaintiff’s litigation conduct, asked the Court to dismiss the case
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with prejudice and to award attorney’s fees and costs. ECF No. 33. Plaintiff did not respond. In
support of its motion the defendant provided a copy of a recent order by Judge Blackburn
adopting a recommendation of a magistrate judge and dismissing a similar case of the plaintiff’s
with prejudice and sanctions. ECF No. 33-11 (Exterior Exports, Inc. v. Allstate Fire and
Casualty, 19cv1563)).
On July 6, 2020 this Court issued an order granting defendant’s motion for summary
judgment. ECF No. 34. The Court found that the case should be dismissed with prejudice, and
that reasonable attorney’s fees should be award, as sanctions. The defendant was directed to file
a bill of costs and documentation of the attorney’s fees it claimed. Id. at 2.
The defendant subsequently filed a bill of taxable costs, ECF No. 37. The plaintiff did
not respond, and costs were taxed by the Clerk in favor of the defendant in the amount of
$2,352,27. ECF No. 43. The defendant also filed a motion for an award of attorney’s fees and
non-taxable costs. ECF No. 40. Once again the plaintiff did respond.
In determining the reasonableness of attorney’s fees the Court first determines the
“lodestar,” meaning the product of hours reasonably expended times a reasonable hourly rate.
The lodestar is presumed to a be a reasonable rate, although it is subject to adjustment by the
Court. See Robinson v. City of Edmund, 160 F.3d 1275, 1281 (10th Cir. 1998). In determining
the reasonableness of the hours and rates, courts often apply the factors articulated in Johnson v.

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Georgia Highway Express, Inc., 488 F. 2d 714 (5th Cir. 1974]. 1 The Colorado Rules of
Professional Conduct provide a similar list of relevant factors. 2
Although the plaintiff did not request a hearing or otherwise respond, the Court has
considered and applied the Johnson factors to the extent they are applicable in this instance. The
Court finds that the hours billed were reasonable, particularly given that the plaintiff sought more
than $100,000 in damages and, for a while, was represented by lawyers who are known to the
Court to be highly experienced in prosecuting insurance coverage cases arising out of property
damage caused by hail and wind storms. The Court is generally familiar with rates charged by
experienced insurance coverage defense counsel in the community, based on the Court’s years as
a practicing lawyer, a state and federal judge, and finds that the rates are reasonable and
customary for the community. The Court has also considered the favorable result obtained and
the reputation of the Wheeler Trigg lawyers involved in the case in terms of ability and
professionalism. Based on those factors, the Court finds that the fee charged (the lodestar) was
reasonable.

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Johnson lists 12 factors for courts to consider in determining reasonableness: (1) the time and labor
required; (2) the novelty and difficulty of the questions; (3) the skill required; (4) preclusion of other
employment; (5) the customary fee in the community; (6) whether the fee is fixed or contingent; (7) time
limitations imposed by the client; (8) the amount involved and the results obtained; (9) the experience,
reputation and ability of the attorney’s; (10) the undesirability of the case; (11) the nature and relationship
of the professional relationship with the client; and (12) awards in similar cases. Id. at 717-19.

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The Colorado Rules of Professional Conduct are found as an Appendix to Chapters 18 to 20,
COLORADO COURT RULES – STATE (2018). These factors identified in Rule 1.5 are (1) time and labor
required, (2) likelihood of preclusion of other employment, (3) fee customarily charged in the locality, (4)
amount involved and results obtained, (5) time limitations imposed by the client or circumstances, (6)
nature and length of the professional relationship, (7) experience, reputation, and ability of the lawyer(s),
and (8) whether the fee is fixed or contingent.

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As for the costs that were not taxable under Fed. R. Civ. P. 54(d)(1) and
D.C.COLO.LCivR 54(1), the primary item is $4,148.50 for expert fees. While expert fees are
generally not taxable as costs awarded to prevailing parties, the request here is for an award of
non-taxable costs as a sanction. In that context, the Court finds that it is reasonable and
appropriate to award those expert fees and the minor amount of additional costs incurred for
Westlaw legal research and miscellaneous filing fees as part of the overall sanction.
ORDER
For the foregoing reasons, defendant’s motion for an award of attorney’s fees and nontaxable costs as a sanction, ECF No. 40, is GRANTED. An Amended Final Judgment will issue
reflecting the award to the defendant, Allstate Vehicle and Property Insurance Company, and
against the plaintiff, Exterior Exports, Inc., of (1) taxable costs in the amount of $2,352.27; (2)
attorney’s fees in the amount of $42,576.50; and (3) non-taxable costs in the amount of
$4,386.53.
DATED this 16th day of November, 2020.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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