Assignability of Attorneys Fees Claim Under Colorado Law

The Colorado Court of Appeals rules that an attorneys' fees claim is assignable as a matter of law. Regency Realty Investors, LLC, v. Cleary Fire Protection, Inc. (Colo. Ct. App. No. 08CA1650, Sept. 3, 2009). The appeal concerned the assignability of a claim under an attorneys' fees shifting clause in a contract, a previously unresolved issue in Colorado. Typically, an attorneys' fees shifting clause provides that the prevailing party in an action between the contracting parties is entitled to an award of attorneys' fees.

In general, a claim is assignable under Colorado law if it "survives the death of the person originally entitled to assert the claim," and the claim does not arise from a matter of "personal trust or confidence, or personal services." Kruse v. McKenna, 178 P.3d 1198, 1200 (Colo. 2008); Roberts v. Holland & Hart, 857 P.2d 492, 495 (Colo. App. 1993). Under Colorado law, only claims for libel and slander do not survive a persons death. C.R.S. sec. 13-20-101(1).

In Regency, the Court reasoned that an attorneys' fee claim is not a matter of personal trust or confidence (e.g. a legal malpractice claim) and is not a claim for specific performance of personal services, and therefore conluded that a claim for attorneys' fees is assignable under Colorado law.

Posted By: Brent W. Houston, Esq.