Wilson & Co. v. Walsenburg Sand & Gravel Co.

RULAND, Judge,

dissenting.

I respectfully dissent from the majority opinion insofar as it does not award WSG the attorney fees it is obligated to pay Fidelity.

There is substantial authority in other jurisdictions for the proposition that if a party breaches a contract with another and thereby causes the non-breaching party to defend an action with a third person, the defending party’s costs, including attorney fees, constitute recoverable items of damage. See, e.g., Fairway Builders, Inc. v. Malouf, 124 Ariz. 242, 603 P.2d 513 (App. 1979); see also D. Dobbs, Remedies § 3.8 at 195 (1973).

I perceive no reason for not following that rule here. See Roach Aircraft, Inc. v. Sable, 513 P.2d 244 (Colo.App.1973) (not selected for official publication). However, even if such award is not sustainable under the breach of contract claim, there is an alternative basis for the award in this case.

The trial court found, on supporting evidence, that:

“Wilson’s position as both the engineer with authority over WSG, the contractor, and as WSG’s subcontractor, fails to comport with standards of good faith and fair dealing..." Many times *1389when WSG requested Wilson to make a decision on the project, Wilson was either unable to provide the necessary direction to accomplish the work, or as evidenced by it’s [sic] letter ... [it was] unwilling to do so. Wilson, in the court’s opinion, could not have it both ways_” (emphasis supplied)

Thus, the trial court properly characterized Wilson’s conduct as tortious in nature.

In Western Insurance Co. v. Brochner, 682 P.2d 1213 (Colo.App.1983) this court approved the rule set forth in Restatement (Second) of Torts § 914(2) which provides:

“One who through the tort of another has been required to act in the protection of his interest by bringing or defending an action against a third person is entitled to recover reasonable compensation for loss of time, attorneys fees and other expenditures thereby suffered in the earlier action.”

On certiorari, Brochner was reversed on other grounds; however, the supreme court did not reject application of the Restatement rule if, as here, a party is without fault in the underlying action. Brochner v. Western Insurance Co., 724 P.2d 1293 (Colo.1986).

WSG’s counterclaim against Wilson for the attorneys fees due Fidelity was predicated upon allegations that Fidelity should not have been joined because WSG was financially solvent. While this theory lacks legal merit, it is axiomatic that a judgment should award a party litigant the relief established by the evidence. C.R.C.P. 54(c); Johnson v. Bovee, 40 Colo.App. 317, 574 P.2d 513 (1978).

Here, despite the fact that the court found that Wilson breached a covenant of good faith, WSG, who was not at fault for breach of any contract, was required to pay its attorney fees to establish that Wilson breached the contract as well as the fees incurred by Fidelity in defending as WSG’s surety. In my judgment, given the substantial and ever-increasing costs of litigation, courts should seek to assure that one who acts in good faith is wholly compensated for actual losses he suffers by another’s bad faith breach of contractual obligations.