specially concurring.
I concur in the result reached by the majority. However, since the trial court’s award of attorney fees against Century as a sanction for its destruction of evidence was mandated, in my view, by § 13-17-102, C.R.S.1997, I do not believe the majority’s reliance on the doctrine of inherent power is necessary.
A trial court “shall assess attorney fees” if it finds that a party “defended an action, or any part thereof, that lacked substantial justification” or “unnecessarily expanded the proceeding by ... improper conduct.” The statute equates “lacked substantial justification” to “substantially vexatious.” Section 13-17-102(4), C.R.S.1997.
In Western United Realty, Inc. v. Isaacs, 679 P.2d 1063, 1069 (Colo.1984), our supreme court observed:
Certainly, if the record reveals that counsel or any party has brought, maintained, or defended an action in bad faith, the rationale for awarding attorney fees is even stronger. Bad faith may inelude conduct which is arbitrary, vexatious, abusive, or stubbornly litigious. It may also include conduct aimed at unwarranted delay or disrespectful of truth and accuracy.
Clearly, destruction of evidence which is the subject of the litigation in “bad faith,” as the trial court specifically found had occurred here, is “disrespectful of truth and accuracy.”
Consequently, in my view, the trial'court was compelled by the language of § 13-17-102(4) to award attorney fees against Century, regardless of the import of its inherent power, and I would affirm its decision on that basis.