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Parr v. Triple L&J;Corp.11/18/2004
ysical property damage or bodily injury; economic loss does not include any claim of personal injury or physical damage to other property); see also Presnell Constr. Managers, Inc. v. EH Constr., LLC, 134 S.W.3d 575, 583 (Ky. 2004)(Keller, J., concurring) (outlining development of economic loss rule and noting its limitation to claims in which only economic losses are sought and no physical damage or personal injury claim is asserted).
Defendant does not raise the validity of Bailey's recovery under W.O. Brisben Companies, Inc. v. Krystkowiak, 66 P.3d 133 (Colo. App. 2003), aff'd on other grounds, 90 P.3d 859 (Colo. 2004). Hence, we do not address that issue.
III.
In a corollary argument, defendants contend that because exemplary damages are not generally available for breach of contract claims, and plaintiffs' tort claims for economic loss are barred by the economic loss rule, the trial court erred in awarding exemplary damages. We disagree.
While plaintiffs sought recovery of such damages under both the contract and tort claims, the court awarded exemplary damages only under the tort claim for intentional interference, not under the contract. The court granted an award of $5,000 "to plaintiffs" and neither differentiated between plaintiffs nor apportioned the award.
Because punitive damages are not "economic losses," and we have upheld Bailey's tort recovery for emotional distress based on tortious interference, we see no basis to preclude her recovery of exemplary damages. See Vanderbeek v. Vernon Corp., supra. Because the trial court found, with record support, that defendants acted in a malicious manner toward Bailey, it properly awarded exemplary damages in her favor against both.
Because we uphold the entirety of the punitive damages award to Bailey, and because the trial court did not distinguish between Parr and Bailey as to a recovery on this claim, we need not consider whether Parr is separately entitled to recover punitive damages.
IV.
Defendants contend, plaintiffs agree, and we concur, that because plaintiffs and Triple L&J;were the only parties to the lease, the trial court erred in awarding attorney fees against Schafer individually based on a prevailing party provision in the lease. Hence, the judgment for attorney fees against Schafer individually must be vacated. However, because we have upheld a tort recovery against Schafer, the cost award against him may stand.
V.
Plaintiffs, as prevailing parties, are entitled to an award of attorney fees and costs on appeal against Triple L&J; and on remand the trial court should determine the appropriate amount. See Dennis I. Spencer Contractor, Inc. v. City of Aurora, 884 P.2d 326 (Colo. 1994).
Those parts of the judgment awarding $20,000 in economic losses against Triple L&J;and Schafer for tortious interference and awarding attorney fees against Schafer individually are vacated. The balance of the judgment is affirmed, and the case is remanded for determination of attorney fees and costs incurred on appeal.
JUDGE ROTHENBERG and JUDGE STERNBERG concur.
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