Opinion
No. CV 07-675-PCT-MHM.
February 24, 2009
ORDER
Pending before the Court is Plaintiff Empire Fire and Marine Insurance Company's ("Empire's") Motion for Award of Attorney's Fees. (Doc. # 31) On March 29, 2007, Empire filed this declaratory judgment action seeking a judicial determination that there was no coverage under the Empire Policy for any claims asserted by Defendant Judita Bittermann-Halbreich in Coconino County Civil Cause No. CV-2006-0645. Defendant moved to dismiss the complaint on the grounds that the Court should exercise its discretion to decline jurisdiction in favor of the parallel state court action. (Doc. # 12) On September 8, 2008, the Court entered judgment in Defendant's favor dismissing the complaint. (Doc. # 29) Thereafter, Defendant moved for an award of attorney's fees in the amount of $19,846.50.
Plaintiff filed a Response, arguing, among other things, that because Defendant has not yet made a recovery under her contingency fee agreement, she cannot recover attorney's fees. In her Reply, Defendant agrees with Plaintiff that fees should not be awarded until there is a recovery, see Nationwide Mut. Ins. Co. v. Stevens, 166 Ariz. 372, 802 P.2d 1071 (Ariz.App. 1990), and requests that the Court defer ruling on the attorney fees application until the underlying case is resolved. Accordingly,
IT IS ORDERED denying without prejudice Plaintiff's Motion for Award of Attorney's Fees. (Doc. # 31) Plaintiff may renew her request for attorney's fees in the event she is the prevailing party on the underlying claim.