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Farmers Alliance Mutual Insurance Company v. Ho12/19/2002
rds, the policy does not exclude autos left for service, repair, storage, or safekeeping. It merely limits coverage to those autos that qualify under symbols 28 and 29. The fact that the policy uses a narrower definition under symbol 30 does not preclude coverage under symbol 28. See Cruz v. Farmers Insurance Exchange, supra (even though a policy at times uses precise definitions, that does not preclude the use of a very broad term to encompass all of those terms). Therefore, garage owner's failure to choose symbol 30 coverage does not exclude autos described under that symbol that are otherwise described and covered under symbols 28 and 29.
II.
Farmers Alliance next contends the trial court erred in awarding attorney fees to An Ho. We agree.
In the absence of an express statute, court rule, or private contract to the contrary, attorney fees generally are not recoverable by the prevailing party in a contract or tort action. Allstate Insurance Co. v. Huizar, supra.
In Allstate Insurance Co. v. Robins, 42 Colo. App. 539, 597 P.2d 1052 (1979), a division of this court held that an insurance policy obligating the insurer to "reimburse the insured for all reasonable expenses incurred at the company's request" entitled the insured to reimbursement of attorney fees incurred in successfully defending a declaratory judgment action brought by the insurer.
Here, the policy contains similar language. However, An Ho is not an insured under the garage business policy. As a stranger to that policy, he is not entitled to reimbursement of attorney fees incurred in pursuing the determination of coverage.
Relying upon Guaranty National Insurance Co. v. McGuire, 192 F. Supp. 2d 1204 (D. Kan. 2002), An Ho nevertheless asserts that an injured party can stand in the shoes of the insured for the purposes of collecting attorney fees. That case, however, involved an assignment of rights under the insurance policy from the insured to the injured party. Even if we assume, without deciding, that Colorado would allow recovery under such circumstances, here there has been no such assignment. Garage owner was not a party to the settlement agreement, and he did not assign rights or claims to An Ho.
Accordingly, because no contractual basis exists to support an award of attorney fees in favor of An Ho, and he cites no other authority under which an award may be made, the trial court's order awarding attorney fees cannot stand.
In view of this disposition, we need not address the remaining contentions of the parties.
That part of the judgment awarding An Ho his attorney fees is reversed. The balance of the judgment is affirmed.
JUDGE ROY and JUSTICE ERICKSON concur.
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