 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Pedlow v. Stamp9/12/1991
Plaintiff, Gertrude Pedlow, appeals from the order of the trial court awarding attorney fees and costs to defendant, Dale Stamp, pursuant to § 13-17-102, C.R.S. (1987 Repl. Vol. 6A). We reverse.
In 1983, the City of Colorado Springs entered into an agreement under which defendant was responsible for operating and staffing the municipal tennis program. In 1984, defendant offered to hire plaintiff as his administrative assistant. The written employment contract proposed by defendant provided, in part, that neither the city nor defendant would provide workers' compensation insurance coverage for plaintiff. In response, plaintiff informed defendant that this provision conflicted with his legal obligations under the Colorado Workers' Compensation Act. When defendant refused to modify the proposed contract, plaintiff commenced this action, asserting that defendant's conduct violated the public policy underlying §§ 8-44-101(1) and 8-48-101(1), C.R.S. (1986 Repl. Vol. 3B).
Defendant filed an answer and a counterclaim which requested an award of attorney fees and costs under § 13-17-102. The complaint was dismissed on defendant's motion for summary judgment, and the trial court subsequently entered summary judgment on defendant's counterclaim for attorney fees.
On appeal, this court rejected plaintiff's assertion that her claim represented a good faith attempt to establish a new theory of law, and we therefore affirmed the trial court's order. Pedlow v. Stamp, 749 P.2d 969 (Colo. App. 1987). That ruling was reversed in Pedlow v. Stamp, 776 P.2d 382 (Colo. 1989), wherein our supreme court held that the trial court abused its discretion in failing to conduct a hearing on defendant's counterclaim and in failing to set forth any factual findings in support of its award.
Following the hearing on remand, the trial court again entered judgment against plaintiff on defendant's counterclaim. In its written order, the trial court made the following findings:
"It is agreed that . . . Plaintiff was attempting to establish new law. The court has previously found that Plaintiff's counsel was acting in good faith and was not negligent or acting to harass, vex or delay the Defendant.
"Based upon the record in this case, the court finds the complaint to be 'substantially frivolous' based upon the absence of Colorado precedent supporting the desired establishing of new law, and in view of the existing Colorado precedent defining wide latitude in the creation of employer-employee relationships."
On appeal, plaintiff contends the trial court abused its discretion in imposing sanctions. We agree.
Section 13-17-102(7), C.R.S. (1987 Repl. Vol. 6A) provides that: "No attorney or party shall be assessed attorney fees as to any claim or defense which the court determines was asserted by said attorney or party in a good faith attempt to establish a new theory of law in Colorado." This provision of the statute reflects the principle that an attorney's ethical obligation zealously to represent a client permits the pursuit of a claim which is not recognized under existing law "if it can be supported by a good faith argument for an extension, modification, or reversal of existing law." See Mission Denver Co. v. Pierson, 674 P.2d 363 (Colo. 1984).
Here, plaintiff sought to establish a public policy tort based on an employer's requirement that prospective employees waive certain rights under the Workers' Compensation Act. Such a cause of action has not been recognized in this jurisdiction, n
Page 1 2 3 4 Colorado Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|