Colorado Court of Appeals: Agreement to Pay Half of Mediator’s Fees Precluded Court from Awarding Fees as Costs

The Colorado Court of Appeals issued its opinion in

Costs, Fees, and Expenses.

Plaintiffs (collectively, Valentines) appealed the district court’s order awarding costs to defendant Mountain States Mutual Casualty Company (Mountain States). The order was affirmed in part, vacated in part, and reversed in part, and the case was remanded for additional findings.

The Valentines contended that the district court abused its discretion by awarding all of Mountain States’ requested costs for transcripts of discovery depositions ($27,157.98). Mountain States hired an attorney to assess the reasonableness of these costs. The Valentines submitted no rebuttal evidence. Therefore, the district court had sufficient evidence to make a reasoned decision about the reasonable necessity of the depositions and did not abuse its discretion in awarding the transcript costs.

The Valentines also contended that the district court abused its discretion by awarding all of Mountain States’ requested expert witness costs. Mountain States offered sufficient evidence to show the reasonableness and necessity of the expert witnesses’ fees and travel costs. The Court of Appeals therefore determined that the trial court did not abuse its discretion in awarding these costs.

The Valentines argued that the district court abused its discretion in awarding all of Mountain States’ requested in-house photocopying expenses ($22,991.40). Mountain States offered no evidence supporting the reasonableness or necessity of making such a large number of photocopies in-house, and there was evidence that outside vendors charged Mountain States 5.5¢ per page, on average. The Court ruled here that the district court abused its discretion in awarding the full in-house photocopying expenses, and that portion of its award was reversed.

The Valentines contended that the district court abused its discretion in awarding all of the costs billed by the mediator and the special master. The Court ruled that the district court abused its discretion in awarding these costs because Mountain States’ agreement to pay half of the mediator’s and special master’s fees, as well as all of the special master’s out-of-state deposition fees, precluded the court from awarding these fees as costs.

The Valentines contended that the court abused its discretion in awarding counsel’s expenses for mileage, meals, airfare, computerized research expenses, and costs for Mountain States’ payment of an outside vendor for trial technical support. Mountain States did not supply a sufficient description or calculation for the mileage charged, nor did it provide any supporting invoices or documentation. Further, costs of counsel’s meals are not awardable because they are not attributable to the litigation; counsel would need to eat regardless of any litigation. Consequently, the district court abused its discretion in awarding the mileage and meals expenses. The district court did not abuse its discretion in awarding Mountain States’ counsel’s deposition-related airfare, computerized research expenses, or the cost for an outside vendor for trial technical support, because these costs were reasonable and necessarily incurred.