Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 00-CV-2098 - REB - MJW KELLY FINCHER, by her guardian, JAMES FINCHER, on behalf of herself and all others similarly situated, Plaintiffs, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant.

MEMORANDUM OF DEFENDANT PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY ("PRUPAC") IN OPPOSITION TO PLAINTIFF'S MOTION FOR ATTORNEY FEES

I.

SUMMARY OF ARGUMENT

Plaintiff's motion for attorney and paralegal fees, filed pursuant to C.R.S. §10-4-708, seeks $378,720.50 incurred between August 2000 and October 2007. The purported justification for the motion is the recovery of $92,500 in APIP benefits, the amount Prupac voluntarily paid to plaintiff on April 12, 2006, 18 months before the scheduled trial date. Plaintiff's counsel argue that they have satisfied the two statutory criteria for an award of attorney fees: (1) they were "successful in the proceeding" and (2) the amount of fees requested is reasonable under the circumstances of the case. Fincher is not entitled to any attorney fees. First, the statute upon which she bases her motion does not authorize an award of fees in a lawsuit such as hers seeking extended PIP benefits under C.R.S. §10-4-710. Second, she was

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not "successful in the proceeding" as required by C.R.S. §10-4-708(1.7)(c)(I). Third, she cannot demonstrate Prupac failed to make payments "when due," as required by C.R.S. §10-4-708(1). Fourth, her Notice to Insurer of Amount Claimed, required under C.R.S. §10-4-708(1.7)(a), was statutorily deficient. Fifth, she has failed to sustain her burden of proof that the fees requested were reasonable and related solely to the recovery of APIP benefits. Alternatively, Plaintiff's fee request should be substantially reduced because she failed to reduce the requested fees by attorney time spent on numerous other claims, theories and class certification issues unrelated to the recovery of APIP benefits. Also, she failed to account for Prupac's $450,000 Offer of Judgment. Finally, the statute directs that fees be awarded in direct proportion to the success of the action, but Plaintiff failed to compare her actual recovery of $92,500 with the $3,292,881 she claimed in PIP benefits throughout the course of this litigation, or with her settlement demand of $7,000,000. Employing this statutory directive, Plaintiff would be entitled, at best, to less than $11,362 in fees, even assuming all $378,000 of her claimed fees were incurred solely on her breach of contract claim for unpaid APIP benefits. II. FACTUAL BACKGROUND Plaintiff filed this lawsuit on August 24, 2000, seeking certification of a plaintiff class, reformation of the Prupac policy to include APIP benefits, and damages for breach of contract, bad faith breach, willful and wanton conduct, and violation of the Colorado Consumer Protection Act. Plaintiff, individually,

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claimed unpaid APIP benefits due under the breach of contract claim, including lost future wages, medical and life care expenses, in excess of $3.2 million.1 The Court reformed the policy on February 28, 2006, to an aggregate limit of $200,000, effectively limiting Plaintiff's APIP benefits claim to $92,500. Even after Prupac paid those benefits on April 12, 2006 (and $202,000 in statutory interest on May 31, 2006), Plaintiff continued to pursue her $3.2 million claim for APIP benefits. Plaintiff remained uncompromising in her settlement demand of $7,000,000 following the settlement conference before Magistrate Watanabe on May 30, 2007 (See Exh. C), and Prupac thereafter served a formal Offer of Judgment in the amount of $450,000 on August 7, 2007, which she rejected. (See Exh. D). On September 21, 2007, 24 days before trial, Plaintiff submitted a "Notice to Insurer of Amount Claimed", purporting to reduce her actual claim for PIP benefits to only $92,000 (but reserving the right to seek more if successful on appeal). On October 9, 2007, the Court ruled on Prupac's summary judgment motion. The order gave Plaintiff a judgment for the amount of benefits and interest Prupac already had paid and declared Plaintiff's breach of contract claim for benefits moot. The order also granted Prupac summary judgment on the remaining bad faith breach and willful and wanton conduct claims. III. ARGUMENT A.
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Plaintiff Is Not Entitled To Any Attorney Fees.2

Plaintiff's endorsed expert Bonnie Ruth's Life Care Plan identifies future medical and life care expenses totaling $2,366,850.20, and her endorsed economist Jerome Sherman's updated report of March 29, 2007, identifies Plaintiff's wage losses at $926,031, for a total of $3,292,881 in PIP benefits sought in this case, not including the $92,500 paid after the reformation order. (See attached Exhibits A & B).

Plaintiff's Motion, and the cases cited therein for the proposition that a fee award is appropriate, do not address any of the arguments presented here as to why she is not entitled to any fees. Moreover, Allstate v. Robins and Flannery v. Allstate were not based on 10-4-708 but instead on a policy provision not

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1.

C.R.S. §10-4-708 Applies Only To The Recovery Of Basic, Rather Than Extended, PIP Benefits.

Attorney fees are not recoverable under Colorado law unless provided for by statute, court rule, or private contract. Adams v. Farmers Ins. Group, 983 P.2d 797, 801 (Colo. 1999). The statute under which Plaintiff seeks fees, C.R.S. §10-4-708 (attached as Exh. E) applies, by its plain terms, only to disputes involving claims for the "required coverages" under §10-4-706. It does not apply to disputes involving claims for the optional extended PIP benefits arising under §10-4-710, as sought by Fincher in this case. Subsection 10-4-708(1) provides that "benefits under the coverages enumerated in §10-4-706" are overdue if not paid within thirty days of submission of reasonable proof of the claim. This subsection further provides that, "[i]n the event that the insurer fails to pay such benefits when due, the person entitled to such benefits may bring an action in contract to recover the same." The attorney fees provision in §10-4-708(1.7) is applicable only to claims for overdue basic PIP benefits required by §10-4-706. In Smith v. Farmers Ins. Exchange, 983 P.2d 71, 76 (Colo. App. 1998) rev'd in part on other grounds, 9 P.3d 335 (Colo. 2000), the Colorado Court of Appeals confirmed that the attorney fee (and other) provisions of C.R.S. 10-4708 apply only to claims for benefits under the minimum or basic coverages required by C.R.S. §10-4-706:

applicable here. Allstate v. Orban involved a claim under a homeowner's policy where the court ruled the policyholder was not entitled to fees in defending against a declaratory judgment action brought by the insurer regarding a third-party claim against the insured. In Bernard v. Farmers, the court held that attorneys fees were not recoverable in securing a judgment against an insurer for bad faith breach of contract in absence of a contractual provision.

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"To understand the provisions of ...10-4-708(1.7) concerning attorney fees, we must review the statutory provisions in context. Section 10-4708(1), C.R.S. 1998, provides that "payment of benefits under the coverages enumerated in 10-4-706(1)(b) to (1)(e) . . . shall be made on a monthly basis." These cited sections, in turn, set forth the minimum coverages required for compliance with the personal injury protection provisions of the No-Fault Act. Thus, in context, the reference in 10-4708(1.8) to "benefits recovered" must refer to the minimum requirements of coverage under the No-Fault Act. Similarly, the reference to the "party claiming the benefits" in 10-4-708(1.7)(a), C.R.S. 1998, again must be to the minimum requirements of coverage under the No-Fault Act." It is undisputed that Prupac timely paid Plaintiff all basic PIP benefits available under the policy and §10-4-706. (Amended Complaint, ¶¶ 21-23). Because her suit for benefits involved only enhanced coverages under C.R.S. §10-4-710, Plaintiff possesses no statutory right to recover attorney fees in this case. Accord, Lopez v. American Family Mut. Ins. Co., Civ. Action No. 05-CV02603-RPM (United States District Court, D. Colo. May 16, 2007) (Order Denying Motion For Attorney Fees)(Order attached as Exh. F). 2. Plaintiff Was Not "Successful In The Proceeding" As Required By Statute.

Section 10-4-708(1.7)(c)(I) provides for attorney fees only if the insured was "successful in the proceeding." As used in this statute, the term "proceeding" is the trial or arbitration hearing at the end of the litigation process in which an award of unpaid benefits is made.3 Goodwin v. Homeland Cent. Ins. Co., 2007

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Section 10-4-708(1.7)(a) requires the insured to submit a "notice to insurer of amount claimed" at least 20 days "prior to the commencement of the proceeding" (emphasis added) as a prerequisite to recovery of attorney fees. This provision further states that "the notice shall be served on all parties no later than 20 days prior to the commencement of the arbitration or trial." Thus, "proceeding" must mean "the arbitration hearing or trial". Plaintiff herself recognized that the trial was the "proceeding", as she filed her Notice on September 21, 2007, slightly more than 20 days prior to the scheduled trial date of October 15, 2007. Moreover, Section 10-4-710(1.7)(c)(I) requires that any award of attorney fees "shall be in direct proportion to the degree by which the insured was successful in the proceeding," and establishes that success "shall be based upon a comparison of the amount of benefits set forth in the notice of amount of benefits claimed and the amount of benefits recovered in the proceeding." (Emphasis added).

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Colo. App. LEXIS 1210 (Colo. App. 2007)(affirming denial of attorney fees where benefits were paid prior to trial pursuant to reformation order). Plaintiff here was not successful in the "proceeding" because she did not recover benefits pursuant to a judgment at trial entered after filing her Notice of claim. The reformation hearing in this case was not a "proceeding" as defined in the attorney fees statute (see section B.1.c., below).
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Goodwin, supra (holding

that plaintiffs' success in obtaining reformation did not entitle them to attorney fees). Moreover, payments by the insurer prior to the trial are not treated as amounts recovered in the proceeding for purposes of determining entitlement to attorney fees. Goodwin, supra. The purpose of the attorney fees statute was to encourage resolution of benefit disputes without an arbitration hearing or trial, and the potential award of attorney fees based on recovery of benefits in such proceedings is an incentive to making an earlier voluntary payment. Plaintiff obtained a judgment in the summary judgment order confirming that the amount Prupac already had paid in April, 2006, was all that it owed to Plaintiff. Plaintiff's recovery of the APIP benefits was not a result of the Court's judgment in October, 2007. Plaintiff's Notice of the amount of benefits claimed (Exh. 1 to Plaintiff's Motion) misleadingly listed $92,500 as the amount in controversy. Prupac already had paid that amount and, therefore, it could not be "recovered in the proceeding." In fact, because the Court's reformation order effectively limited the
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Plaintiff did not treat the reformation hearing as a proceeding under the statute and did not submit her Notice to Insurer of Amount Claimed at that time. For that reason, even if the reformation hearing could be considered a proceeding, Plaintiff forfeited any right to attorney fees by failing to submit the Notice 20 days before the hearing commenced, as the statute required.

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remaining available APIP benefits to that amount previously paid, Plaintiff could not have recovered any APIP benefits "in the proceeding." She was, therefore, not entitled to attorney fees regardless of the outcome of trial, which would have addressed only the remaining claims for bad faith, willful and wanton conduct, treble and punitive damages, to which the attorney fees statute does not apply. 3. Plaintiff Cannot Establish That Prupac Failed To Make Payments "When Due".

The prerequisite for a court's authority to award attorney fees under C.R.S. §10-4-708 is a factual finding that an insurer failed to pay basic benefits "when due." Adams, supra. Plaintiff here sought extended benefits not provided under the insurance contract as written, and such benefits could not be due until the policy was judicially reformed. Soto v. Progressive, 2007 Colo. App. LEXIS 1396, (Colo. App. July 26, 2007)("...additional PIP benefits do not become due until the contract is reformed to include them."); Brennan v. Farmers Alliance Mut. Ins. Co., 961 P.2d 550, 556-557 (Colo. App. 1998); Clark v. State Farm Mut. Ins. Co., 319 F.3d 1234, 1243 (10th Cir. 2003)("The fact that the insured may be entitled to obtain a reformation of the policy does not impose any obligation upon the insurer to conform to such 'reformed' policy before a court has made such reformation", citing Couch § 26:3). See also, Lopez, supra, denying attorney fees on a similar §10-4-710 case notwithstanding a retroactive reformation date. Prupac paid such benefits promptly after the reformation order of February, 2006, even though such benefits are still not due, because of the parties' rights of appeal. Adams, supra; Lopez, supra; Clark v. State Farm Mut. Ins. Co., 170 Fed. Appx. 554, 557-558, 2006 U.S. App. LEXIS 6383 (10th Cir. 2006)

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4.

Plaintiff's Notice To Statutorily Deficient.

Insurer

Of

Amount

Claimed

Was

In order to recover attorney fees, Plaintiff must file a Notice of "the amount claimed and in controversy". C.R.S. 10-4-708(1.7)(a). Plaintiff's Notice did not comply with the statute because it failed to identify the $3.2 million she had claimed, and was continuing to claim5, and which represented the true amount in controversy. Rather, it identified APIP benefits in the amount of $92,500, but this amount had already been paid to her on April 16, 2006, and was not in controversy. As such, Plaintiff was seeking either nothing as APIP benefits in the trial (because the claim had been mooted by Prupac's payment of this amount 18 months earlier) or several million dollars (because the Notice reserved the right to seek such additional amounts and revise the Notice). Either way, her Notice was misleading and non-compliant with the statute. It was a transparent attempt to maximize recovery of fees by appearing to, but not in fact, reducing the amount claimed and in controversy in this lawsuit. Under C.R.S. §10-4708(1.7)(a), Plaintiff's failure to file a compliant Notice precludes any award of attorney fees. 5. Plaintiff Has Failed To Satisfy Her Burden Of Proof For Recovery Of Fees.

A party filing a motion for an award of attorney fees bears the burden of proving her entitlement to such an award. Board of County Commissioners v. Auslaender, 745 P.2d 999, 1001 (Colo. 1987). "If the attorney provides a rational

In the Fourth Amended Final Pretrial Order [doc. # 238], filed August 14, 2007, Plaintiff continued to assert her breach of contract claim (p. 5), and listed her life care expense and wage loss experts as "will call" witnesses to testify at trial concerning the $3.2 million in unpaid APIP benefits (p. 23).

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basis for the work done, he or she should be compensated accordingly, and, of course, if he or she should fail to establish such a basis, limiting the award of attorney fees is appropriate." Spensieri v. Farmers Alliance Mutual Ins. Co., 804 P.2d 268, 271 (Colo. App. 1990). C.R.S. 10-4-708(1.7)(c)(III) states: "In no event shall the arbitrator or court enter an award of attorney fees which is in excess of actual reasonable attorney fees." Even if Plaintiff were entitled to fees for recovery of APIP benefits, her motion fails to establish the amount reasonably incurred for recovery of these benefits - the sole basis of her fee claim. C.R.S. §10-4-708(1.7)(a) authorizes a fee award only for the recovery of the overdue §10-4-706 benefits, not other theories or damages claims. (See, section III.B.1., below). Counsel submitted 125 pages of fee entries, in non-chronological order, without adequate description of work performed, and without identification of which entries applied to work on Plaintiff's breach of contract claim. Counsel's affidavit in support of the fees stated that all legal work was "performed as part of the litigation of this action", but statutory fees are only awardable on the breach of contract claim. Plaintiff's failure to categorize the fees so as to permit the Court to conduct a meaningful review of time generated solely in connection with the contract claim constitutes a failure of proof, precluding any award of fees. Moreover, while the claimed hourly rates of $395 and $295 per hour may be appropriate for experienced class counsel prosecuting Fincher's complex class certification claim (as counsel emphasize in their motion), they are excessive for counsel seeking only PIP benefits for breach of insurance contract.

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Payment of $378,720.50 in attorney fees also would be unreasonable considering that Plaintiff recovered only $92,500 in benefits. Plaintiff's counsel state that their contingent fee agreement with Mr. Fincher requires him to pay all fees and costs. (Plaintiff's Exhibit 2.) However, because the statutory criteria for assessment of fees do not include private fee agreements with clients, Fincher's fee agreement is irrelevant here.6 B. Alternatively, Plaintiff's Fee Claim Should Be Substantially Reduced. As a preliminary matter, an award of attorney fees under this statute is within the discretion of the Court. Plaintiff's argument that such an award is mandatory whenever a plaintiff prevails was specifically rejected by the 10th Circuit in Clark, 170 Fed. Appx. at 557-558, a case filed by Fincher's counsel. See, also, Adams, supra. at 798 (agreeing with plaintiff's argument that the trial court has discretion to award fees); Soto, supra. (any award of attorney fees is at the trial Court's discretion, citing Brennan, supra.) Moreover, the statute itself clarifies that fees are not mandatory: "In determining the amount of attorney fees, if any, to be awarded. . ." C.R.S. 10-4-708 (1.7(c)) (emphasis added). 1. Plaintiff Is Not Entitled To Recovery Of Fees Unrelated To Her Claim For PIP Benefits.

Section 10-4-708 provides for recovery of basic PIP (10-4-706) benefits that the insurer does not promptly pay. Subsection 10-4-708(1.7) authorizes an
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The referenced May, 1994, contingent fee agreement involved the underlying tort suit, and likely has no bearing on this class action suit filed 6 years later. Even if relevant, evaluation of Plaintiff's argument is impossible without a review of the agreement, which Plaintiff refused to produce in discovery on grounds of relevance and privilege. Payment of $378,720.50 in attorney fees would be unreasonable, for example, if Plaintiff is obligated to pay only 1/3 of the total amount recovered (or, even more so, if not obligated to pay any portion of the benefits recovered, only the amount awarded by the Court). In any event, Prupac submits that any argument based on the alleged fee agreement should be stricken, as Plaintiff's refusal to produce the supporting document precludes any opportunity for judicial verification or rebuttal.

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award of attorney fees incurred to recover such benefits in contract. It does not, however, permit recovery of fees incurred by Plaintiff here for purposes other than obtaining PIP benefits under her breach of contract claim - even assuming it permits fee awards for recovery of extended PIP benefits. (See, III. A. 1., above.) a. Fees Incurred After Payment Of Benefits Are Not Compensable.

Attorney fees incurred after April 12, 2006, the date Prupac paid the $92,500 of APIP benefits Plaintiff claimed in her Notice, are not compensable under the attorney fees statute. Such fees were necessarily related, not to any claim for unpaid benefits, but to Plaintiff's remaining claims for alleged bad faith, willful and wanton conduct, treble damages and punitive damages, to which the attorney fees statute does not apply. According to counsel's fee records, of the $378,720.50 in attorney fees requested in Plaintiff's motion, $129,038.50 was incurred after Prupac made that payment. At a minimum, Plaintiff's total fee claim should be reduced to $249,682. b. Fees Incurred For Other Causes Of Action Are Not Compensable.

Similarly, Plaintiff would not be entitled to attorney fees expended before Prupac's payment of benefits in connection with her unsuccessful attempts to certify a class or to further her bad faith, willful and wanton conduct, Consumer Protection Act, treble damages and punitive damages claims. Nor is she entitled to fees expended on experts, whose work related to seeking recovery of benefits in excess of the $200,000 cap, and to bad faith and reformation issues. Her motion fails to separate out any of these non-awardable fees, except for those associated with class issues, which counsel claims constituted only 15.5 hours of

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attorney time (Plaintiff's Motion at 3.) This amount is neither accurate (attorney Rector's time for drafting the original motion for class certification, only, totals 17.25 hours - Exh. C-1, pp. 7 & 8 of 20) nor credible, given the multiple briefs filed and the amount of deposition time and other discovery devoted to class certification issues. Plaintiff has failed to identify or apportion fees related to claims or issues unrelated to the APIP benefits claim, and the descriptions on the timesheets are not sufficiently detailed to allow categorization of the work, much less permit the Court to make such a determination. Plaintiff has not met her burden of proving the amount of attorney fees associated solely with her claim for benefits, and her attorney fees claim should be rejected on that basis alone. c. Fees Incurred To Obtain Policy Reformation Are Not Compensable.

Plaintiff is not entitled to attorney fees for any efforts expended to obtain the Court's February 28, 2006 Order reforming the policy to include APIP benefits. Plaintiff's claim for reformation was based on an alleged improper offer of benefits, not a failure to pay APIP benefits that were due. (Complaint, paragraph 35). Section 10-4-708 does not authorize recovery of attorney fees associated with such a reformation claim. C.R.S. §10-4-708 provides for the recovery of attorney fees where the insured successfully brings a proceeding based on the contention that he or she properly submitted claims for payment but the insurer failed to make prompt payment of such direct benefits claimed when they were due. See Adams v. Farmers Ins. Group, 983 P.2d 797 (Colo. 1999). In this case, the plaintiffs' claims against United Fire were premised on its alleged failure to properly offer enhanced PIP benefits under C.R.S. §10-4-710 as it existed during the applicable time period, thereby requiring a reformation of United Fire's policy to include such benefits and, consequently, the entitlement to payment of enhanced PIP benefits. The failure of United Fire to establish compliance with C.R.S. §10-4-710 was the

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basis for its liability, not the failure to comply with C.R.S. §10-4-708. The statutory mechanism for the payment of enhanced PIP benefits was not applicable until the policy was reformed to include enhanced PIP benefits, the very purpose of this litigation. There was no breach of the contract as the policy was written. Lopez, supra, at pp. 3-4 (where reformation date was date policy was issued). Accord, Goodwin, supra (affirming holding that insured was not entitled to any attorney fees on additional ground that insurer paid benefits promptly after insured submitted claims pursuant to the policy as reformed). 2. Plaintiff's Claimed Attorney Fees Must Be Reduced To Reflect Her Limited Degree Of Success In Obtaining Benefits.

The statute provides that, "[i]n determining the amount of attorney fees, if any, to be awarded to the insured, the arbitrator or court shall consider" several factors, including the degree of Plaintiff's success in obtaining benefits, the amount and timing of settlement offers, and the reasonableness of the fees incurred. C.R.S. §10-4-708(1.7)(c)(I-III). The amount of fees awarded must reflect the degree of Plaintiff's success in obtaining the claimed benefits. Subsection 10-4-708(1.7)(c)(I) provides: The award of attorney fees to the insured shall be in direct proportion to the degree by which the insured was successful in the proceeding. The determination of the degree of the insured's success shall be based upon a comparison of the amount of benefits set forth in the notice of amount of benefits claimed and the amount of benefits recovered in the proceeding. The percentage resulting from this comparison shall be the degree by which the insured was successful. Plaintiff is improperly claiming 100% success by identifying in her Notice only the amount of APIP benefits Prupac already had paid 18 months before the Notice. Measured against her actual $3,292,881 APIP benefits claim, Plaintiff's

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recovery of $92,500 represents a success rate of less than 3 percent. Even applying this percentage to the full $378,720.50 in fees claimed, the amount Plaintiff would be entitled to recover would be less than $11,362. Three percent of the fees incurred before Prupac paid the $92,500 of APIP benefits ($249,692) would be less than $7,500. Finally, three percent of the fees incurred before that payment which were related only to recovery of APIP benefits, and excluding work related to the reformation hearing, would be negligible. The Court also may modify the amount of the attorney fees to which the Plaintiff would be entitled under Subsection 10-4-708(1.7)(c)(I) in light of "the amount of and the timing of any written settlement offers made by any party as compared with the amount as set forth in the notice of amount of benefits claimed." C.R.S. §10-4-708(1.7)(c)(II). Plaintiff demanded $7 million in settlement (See Exh. C), but recovered only the $92,500 already paid. 3. Plaintiff Is Not Entitled To Attorney Fees After Prupac's Rule 68 Offer Of Judgment

Fed. R. Civ. P. 68 provides that: "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." The offeree's obligation to pay these costs includes not only the offeree's own costs but also the costs of the offeror. Pouillon v. Little, 326 F.3d 713, 718-19 (6th Cir. 2003); Payne v. Milwaukee Cty., 288 F.3d 1021, 1024 (7th Cir. 2002). The offeree's obligation for costs includes attorney fees where, as here, a statute defines them as part of costs. Cole v. Wodziak, 169 F.3d 486, 487 (7th Cir. 1999). Attorney fees awarded pursuant to C.R.S. §10-4-708(1.7) "are in the nature of costs, not damages." Giampapa v.

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American Family Mut. Ins. Co., 12 P.3d 839, 842-42 (Colo. App. 2000). The total judgment Plaintiff obtained, which was limited to the $294,500 Prupac had previously paid, did not exceed Prupac's $450,000 offer of judgment, made in addition to the $294,500. Therefore, Plaintiff is obligated to pay her own attorney fees incurred after August 7, 2007, which according to the time sheets, amounts to $81,559.25. IV. CONCLUSION For the reasons set forth above, Prupac asks the Court to deny Plaintiff's request for attorney fees or, alternatively, to award a nominal amount consistent with the criteria set forth in C.R.S. §10-4-708(1.7).

Respectfully submitted this 7th day of December, 2007.

Campbell, Latiolais & Ruebel, P.C.

Bryan Cave LLP Bruce C. Oetter 211 N. Broadway, Suite 3600 St. Louis, Missouri 63102-2750 (314) 259-2000 (phone) (314) 259-2020 (fax)

By: _s/ Clifton J. Latiolais, Jr.______ Clifton J. Latiolais, Jr., #13765 825 Logan Street Denver, CO 80203-3114 (303) 861-7760 (phone) (303) 861-7767 (fax)

Attorneys for Defendant

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CERTIFICATE OF SERVICE

I hereby certify that on this 7th day of December, 2007, a true and correct copy of the above MEMORANDUM OF DEFENDANT PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY ("PRUPAC") IN OPPOSITION TO PLAINTIFF'S MOTION FOR ATTORNEY FEES, was filed and served electronically via CM/ECF to the following: L. Dan Rector, #7568 Franklin D. Azar & Associates, P. C. 5536 Library Lane Colorado Springs, CO 80918 (719) 527-8000 Robert B. Carey, #1717 Leif Garrison, #14394 Steve W. Berman, c/o The Carey Law Firm 2301 East Pikes Peak Avenue Colorado Springs, CO 80909

_________ s/ Denise L. Albares______

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