Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01143-JLK

Document 90

Filed 03/03/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-1143 (CBS)

DOLLY LAU, Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant.

ALLSTATE'S RESPONSE TO PLAINTIFF'S MOTION FOR BILL OF COSTS

Defendant, Allstate Insurance Company, through its attorneys, Walberg, Dagner & Tucker, P.C., responds to Plaintiff's Motion for Bill of Costs as follows: A. Plaintiff is not entitled to costs as the "prevailing party" due to the provisions of F.R.C.P. 68. Allstate made an offer of judgment in the amount of $10,000. Pursuant to the Rule, " If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer." Plaintiff's judgment was not more favorable. Plaintiff appears to argue that she is entitled to her costs solely because a verdict in her favor was entered. Allstate contends that due to the operation of F.R.C.P. 68, she is not the prevailing party and the cost shifting provisions of that Rule require that Allstate be awarded its costs incurred after the date of the offer. Plaintiff's motion for costs should be denied in its entirety.

Case 1:04-cv-01143-JLK

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B. The judgment to which Plaintiff is entitled is less than she would have recovered had she accepted Allstate's offer of settlement in December 2004. In making the FRCP 68 comparison between the judgment finally obtained and the offer of judgment, the court must use like judgments; thus, where the offer of judgment includes costs and attorney fees then accrued, the judgment to which it must be compared is the amount of the verdict plus the amount of costs and attorney fees actually awarded by the court for the period that preceded the offer. Federal Procedure, Lawyers Edition § 51:44, Marryshow v Flynn (1993, CA4 Md) 986 F2d 689, 24 FR Serv 3d 1173. In this matter, Defendant's offer of judgment did not include attorney fees. Thus inclusion of those amounts in the comparison, as suggested by Plaintiff, is improper. Allstate refers the Court to the arguments it has made in Response to Plaintiff's Motion to Amend/Quantify the verdict and in Response to Plaintiff's Motion for Attorney fees . Based on these arguments, and Allstate's position that the verdict in favor of Plaintiff was not more favorable than the offer of judgment made, and that in no event is Plaintiff entitled to costs. C. Plaintiff did not "recover" PIP benefits purusant to C.R.S. 10-4-708(1.6) and is therefore not entitled to claim additional costs under state law. As noted in Allstate's Response to Plaintiff's Motion to Amend/Quantify the verdict and in Response to Plaintiff's Motion for Attorney fees, the verdict returned by the jury does not, as Plaintiff claims, represent a finding by the jury that there was any amount of PIP benefit which had been incurred and submitted but not paid. Rather, the evidence and the manner in which the questions were posed to the jury allow the conclusion that all amounts which Plaintiff claims to have "recovered" were an assessment by the jury of Ms. Lau's probable future need for medical care and rehabilitation services. As a result, Ms. Lau failed to meet her burden of proving that there was any -2-

Case 1:04-cv-01143-JLK

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past due amount still outstanding which the jury determined she should "recover." Consequently all of Plaintiff's citations and references to state substantive law are to no avail. Plaintiff is not entitled to any costs, under Federal or State law, and her Motion should be denied in whole. D. The cost shifting provision of C.R.S. 10-4-708 (1.6) referred to by Plaintiff does not permit the award she demands. Section (1.6) of the former C.R.S. §10-4-708 provided that costs of an arbitration should be allocated by an arbiter. This section has no application to a trial or trial costs, and does not suggest that any different rule of cost allocation should apply in relation to a trial on the issues in question. Plaintiff is grasping at straws. E. Allstate asks that briefing and argument regarding reasonableness and recoverability of individual cost items be deferred until a decision is made by the court concerning which party is actually entitled to costs. Plaintiff admits that she has simultaneously filed a bill of costs with the clerk, and that this Motion was filed "out of an abundance of caution." This Court has ordered a hearing on the various motions pending. Allstate believes that further response on the specific elements of costs demanded by Plaintiff here is premature and unnecessary since Plaintiff should not be awarded any costs in any event. Allstate therefore requests that the court make its determination as to which party is entitled to an award of costs and then remand the matter to the clerk for determination of a proper award of costs subject to confirmation by this court thereafter of the propriety of the amounts awarded or denied. WHEREFORE, Allstate requests that the court issue its order denying the Motion for Bill of Costs filed by Plaintiff on the ground that the judgment to which Ms. Lau is entitled is not as favorable as the offer of settlement made by Allstate, that she is not entitled to costs in relation to

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her PIP claim as she did not "recover" any unpaid PIP benefits, and that she is not entitled to attorney fees or any other costs on the grounds set forth above and in Allstate's Responses to the Motion to Amend/Quantify and the Motion for Attorney Fees simultaneously filed by Allstate. DATED: March 3, 2006 Respectfully submitted, WALBERG, DAGNER & TUCKER, P.C.

By:

/s/Deana R. Dagner Deana R. Dagner Walberg, Dagner & Tucker, P.C. 7400 E Caley Ave Suite 300 Centennial, CO 80111-6714 303-694-9300 ofc 303-694-9370 fax [email protected] Attorneys for Defendant Allstate

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CERTIFICATE OF MAILING I hereby certify that a true copy of the foregoing was placed in the U.S. Mail, with postage prepaid, on July 21, 2004, copies addressed to: Pete Cordova, Esq. P.O. Box 1124 1604 H. Street Salida, CO 81201 Clerk of the Court United States District Court District of Colorado Alfred A. Arraj United States Courthouse 901 19th Street, Room A105 Denver CO 80294-3589 /s/Deana R. Dagner Deana R. Dagner

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