specially concurring:
In Colorado, we adhere to the American Rule, under which each party bears the responsibility for paying its own legal expenses. Bernhard v. Farmers Insurance Exchange, 915 P.2d 1285 (Colo.1996).
This rule is subject to exeeptions, such as where a contract, statute, or rule provides for an award of attorney fees. Bernhard v. Farmers Insurance Exchange, supra.
I join the majority in affirming the award of fees in this case. I write separately, however, because I believe that the award is authorized neither by contract nor by public policy per se, but by statute.
I.
The trial court awarded Huizar attorney fees pursuant to the contract exception to the American Rule. The court based the award on a provision in the insurance policy requiring Allstate to pay Huizar "other reasonable expenses incurred at [Allstate's] request."
A division of this court has held, under very similar language, that the insurer agreed to pay its insured's attorneys fees when the insured successfully defended a declaratory judgment action initiated by the insurer. See Allstate Insurance Co. v. Robing, 42 Colo.App. 539, 597 P.2d 1052 (1979).
However, Robins and all the cases which have favorably cited it involved disputes between the insurer and the insured over Hability coverage for injuries to third parties. The present case does not involve a dispute involving a third party; rather, the dispute is between the insurer and the insured over uninsured motorist benefits for the insured herself.
This distinction is not insignificant. Indeed, the award of attorney fees here is premised upon the insured's contractual right "to have actions against [her] defended by the insurer, at its expense." The duty to defend against others, however, arises only in the liability-not uninsured motorist-context.
An insurance policy should be construed to give effect to the intent of the parties. Compton v. State Farm Mutual Automobile *549Insurance Co., 870 P.2d 545 (Colo.App.1993). "Courts should not rewrite insurance. policy provisions that are clear and unambiguous." Compass Insurance Co. v. City of Littleton, 984 P.2d 606, 613 (Colo.1999).
Here, the insurance policy has separate parts for automobile liability insurance and uninsured motorists insurance. The automobile liability insurance part (Part 1) appears at pages 2-4 of the policy. The uninsured motorist insurance part (Part 5) appears at pages 13-15 of the policy. The "reasonable expenses" language appears only in the Liability part of the policy-alongside other provisions setting forth Allstate's obligations in the event that an insured is sued by another person. See Black's Law Dictionary 806 (7th ed.1999) (liability insurance is "[an agreement to cover a loss resulting from one's liability to a third party.... The insured's claim under the policy arises once the insured's liability to a third party has been asserted."). There is no similar language in the uninsured motorists part of the policy.
Relying on the principle that contracts must be construed as a whole, Huizar argues that the liability section's attorney fee provision applies as well to the uninsured motorist section of the policy.
In International Technical Instruments, Inc. v. Engineering Measurements Co., 678 P.2d 558, 561 (Colo.App.1983), a division of this court recognized that the "meaning and effect of a contract is to be determined from an examination of the entire instrument, not merely from isolated clauses or phrases." Yet, the court, noting that the clause in question appeared under a particular heading and nowhere else in the contract, limited the applicability of the clause to that particular heading.
Likewise, in J & S Enterprises, Inc. v. Continental Casualty Co., 825 P.2d 1020, 1023 (Colo.App.1991), the panel concluded that, because "the format of the [insurance] policy clearly segregated the different coverages into different sections of the contract," an exclusion clause in one part of the contract could not be applied to an exclusion clause in an entirely different part of the contract.
Similarly here, the placement of the "reasonable expenses" language only in the liability part of the policy leads to the conclusion that this language was not intended by the parties to apply to the uninsured motorists part of the policy. See Farmers Insurance Co. v. Gilbert, 14 Kan.App.2d 395, 407, 791 P.2d 742, 749 ("The relied-upon provision is found in the portion of the policy providing liability coverage. No such provision is present in the portion of the policy providing uninsured motorist coverage."), aff'd as modified on other grounds, 247 Kan. 589, 802 P.2d 556 (1990). Cf. Mason v. People, 932 P.2d 1377 (Colo.1997) (had the General Assembly intended statute to achieve a certain result, it would have employed terminology clearly expressing that intent, as it had done in other circumstances).
Moreover, there exists in the uninsured motorists part of the policy a provision expressly refuting the right to claim fees under that part of policy. That provision states that when, as here, a party invokes the right to trial de movo with respect to uninsured motorist benefits: "Costs, including attorney fees, are to be paid by the party incurring them."
Although the supreme court, in Huizar v. Allstate Insurance Co., 952 P.2d 342 (Colo.1998), held the trial de novo clause itself unenforceable, its decision could not nullify the quoted language as an explicit and authoritative expression of the parties' intent with respect to attorneys fees.
In my view, Huizar's contract analysis erroneously ignores the structure of the policy, reads language from Part 1 (and page 2) of the policy into Part 5 (and page 15) of the policy, and ignores language in Part 5 expressly precluding an award of fees in this situation. And, adoption of this analysis essentially creatés an insurance exception to the American Rule.
There may, or may not, be good reason for adopting such an exception. Compare Olympic Steamship Co. v. Centennial Insurance Co., 117 Wash.2d 37, 811 P.2d 673, 682 (1991) (recognizing insurance exception) with Collier v. MD-Individual Practice Ass'n, 327 Md. 1, 607 A.2d 537, 544 (1992) (refusing to adopt insurance exception).
*550However, Colorado has numerous statutes providing for awards of attorney fees, see, e.g., Ramos v. Lamm, 539 F.Supp. 730, 757-59 (D.Colo.1982), aff'd in part, rev'd in part, 713 F.2d 546 (10th Cir.1983) (in Appendix B, listing 85 Colorado statutory attorney fees provisions), and the supreme court has indicated that if we are to have another exception to the American Rule, the General Assembly should create it. See Bernhard v. Farmers Insurance Exchange, supra (creating new exceptions to the American rule is a function better addressed by the legislature than the judiciary).
II.
Nonetheless, I believe that attorney fees were properly awarded in this case pursuant to § 10-4-609, C.R.S.2000.
Section 10-4-609 does not expressly authorize an award of fees. However, in Huizar v. Allstate Insurance Co., supra, the supreme court held unenforceable a trial de novo clause, in part because the effect of the clause was dilute impermissibly Huizar's uninsured motorist coverage under § 10-4-609 by requiring her needlessly to increase her costs of litigation.
The present action seeks to recover those very same needlessly increased costs.
I realize that in the related underinsured motorist context, a division of this court has upheld a denial of an insured's attorney fees incurred in arbitrating a claim with the insurer. See Thurman v. State Farm Mutual Automobile Insurance Co., 942 P.2d 1327 (Colo.App.1997). However, in that case, there was nothing fllegitimate about requiring the insured to undergo arbitration, and the fees incurred in arbitration did not substantially diminish the amount of money ultimately awarded to the insured.
Here, the process the insurer required Huizar to undertake or to challenge was not legitimate, and the fees Huizar was forced to incur absorbed all of the uninsured motorist moneys awarded to her. Because of the public policy the supreme court associated with § 10-4-609 in Huizar v. Insurance Co., supra, I would interpret § 104-609 to authorize the award of fees under the unique cireumstances of this case.
In sum, I conclude that the contract exception to the American Rule does not warrant an award of attorney fees in this case. Because, however, I also conclude that § 10-4-609 authorizes the award of fees, I concur with the majority in affirming the trial court's order.