2. Estate of Casper and "Actual Damages" However, the Colorado Supreme Court held in Guarantee Trust Life Insurance Co. v. Estate of Casper , 418 P.3d 1163, 1172 (Colo. 2018) (" Estate of Casper "), that "attorney fees and court costs [in § 10-3-1116(1) ]... qualify as actual damages." Under the facts of Estate of Casper , this means that if a jury awards punitive damages exceeding Colorado's statutory 1:1 limit, see Colo. Rev. Stat. § 13-21-102(1) (punitive damages, if awarded, "shall not exceed an amount which is equal to the amount of the actual damages awarded to the injured party"), the trial court, in remitting the punitive damages award, includes the attorneys' fees portion of a § 10-3-1116(1) award when determining the limit of "actual damages," and therefore the limit of punitive damages.

¶ 10 The survival statute limits the damages that a representative of a deceased party can recover "in two primary scenarios: (1) when punitive damages and penalties are at issue (‘penalty limitation’); and (2) in tort actions based on personal injury (‘personal-injury limitation’)." Guarantee Tr. Life Ins. Co. v. Estate of Casper , 2018 CO 43, ¶ 8, 418 P.3d 1163. The penalty limitation applies only after the defendant's death, while the personal-injury limitation applies only after the plaintiff's death.

Guarantee Tr. Life Ins. Co. v. Est. of Casper by & through Casper, 2018 CO 43, ¶ 23, 418 P.3d 1163, 1172; see also Travelers Cas. And Sur. Co. of America v. Pacific Gas and Elec. Co., 549 U.S. 443, 448 (2007) (same).

(ECF No. 3-1, at 35 n.8.) See also C.R.S. § 10-3-1115(6); Stewart Title Guaranty Co. v. Tilden, 181 P.3d 94, 99 at n.2 (Wy. 2008) (attorney's fees cannot be obtained where those fees are based upon equitable policies rather than the insurance contract); Guaranty Trust Life v. Estate of Casper, 418 P.3d 1163, 1172 (Colo. 2018) (attorney's fees not actual damages in the absence of contractual or statutory mandates to the contrary because they are not "the legitimate consequences of the tort or breach of contract sued upon and thus not recoverable"). Additionally, this district has declined to award attorneys' fees in closer cases than this one.

[7, 8] ¶36 Attorney fees are typically recoverable only where there is a contractual or statutory basis for the recovery. Guarantee Tr. Life Ins. Co. v. Est. of Casper ex rel. Casper, 2018 CO 43, ¶ 23, 418 P.3d 1163, 1172. In the judicial discipline arena, recovery of attorney fees is authorized under Colo. RJD 36(g).

That conclusion, however, rested on a flawed reading of the survival statute, and we now abandon that interpretation. Guarantee Trust Life Ins. Co. v. Estate of Casper, 2018 CO 43, ¶ 10, 418 P.3d 1163. B. The One-Year Statute of Limitations

And, of course, under the American Rule, absent a statutory or contract provision providing for the recovery of attorney fees, each party is responsible for paying their own attorneys. Guarantee Tr. Life Ins. Co. v. Est. of Casper , 2018 CO 43, ¶ 23, 418 P.3d 1163. ¶ 28

Indeed, to the contrary, our supreme court has recognized that a "breach-of-contract claim is clearly not a ‘tort action based upon personal injury.’ " Guarantee Tr. Life Ins. Co. v. Est. of Casper , 2018 CO 43, ¶ 13, 418 P.3d 1163. And a division of this court has held that awards for breach of contract claims are not to be reduced based on principles of comparative negligence.

The doctrine of nunc pro tunc is often used to ameliorate harm done to a party by court delays or clerical errors." Guarantee Tr. Life Ins. Co. v. Est. of Casper , 2018 CO 43, ¶ 27, 418 P.3d 1163 ; see, e.g. , Zuker v. Clerk-Magistrate , 423 Mass. 856, 673 N.E.2d 548, 552 (1996) (A judgment nunc pro tunc can be entered "to prevent a failure of justice resulting, directly or indirectly from delay in court proceedings subsequent to a time when a judgment, order or decree ought to and would have been entered, save that the cause was pending under advisement.") (citation omitted).

¶13 However, when attorney fees are "damages" awarded "as part of the substance of a lawsuit" — as opposed to "costs" awarded to a prevailing party under a fee shifting provision — a trial court's order is not final until the court has determined the amount of the attorney fees award. Ferrell v. Glenwood Brokers, Ltd. , 848 P.2d 936, 941-42 (Colo. 1993) ; see also Guarantee Tr. Life Ins. Co. v. Estate of Casper , 2018 CO 43, ¶¶ 22-25, 28, 418 P.3d 1163 (holding that attorney fees for denial of an insurance claim were "actual damages" recoverable as a consequence of the suit, rather than a penalty assessed against the losing party in the suit, and thus the fees had to be fully resolved before the order was final for purposes of appeal); Hall v. Am. Standard Ins. Co. of Wis. , 2012 COA 201, ¶¶ 2-4, 12-21, 292 P.3d 1196 (same). ¶14 In contrast, "when a statute provides for an award of attorney fees to a prevailing party, an appeal on the merits proceeds separately from an appeal of an award of attorney fees."