St. Paul Travelers Ins. Co. v. Mark Davis Masonry, Inc.

Filed 2/14/08 St. Paul Travelers Ins. Co. v. Mark Davis Masonry, Inc. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeals from a judgment and postjudgment orders of the Superior Court of Orange County, Hugh Michael Brenner, Judge. Judgment affirmed as modified. Postjudgment order of September 6, 2006 affirmed. Postjudgment order of September 12, 2006 reversed. Postjudgment order of October 24, 2006 affirmed.

Horvitz & Levy, Peter Abrahams and Karen M. Bray for Defendant and Appellant.

Sedgwick, Detert, Moran & Arnold, Christina J. Imre, Douglas J. Collodel, Kelly J. Savage; Smith & Associates and Douglas Lee Smith for Plaintiff and Respondent.

* * *

Introduction

St. Paul Travelers Insurance Company (Travelers) paid money to settle a personal injury lawsuit. Travelers then filed an indemnity claim against Mark Davis Masonry, Inc. (MDM), a party that had contracted with Travelerss insured to perform masonry and scaffolding work on a project for which the insured was the general contractor; the collapse of the scaffolding had caused the injuries that were the subject of the underlying case. After Travelers and MDM had filed cross‑motions for summary adjudication in the indemnity case, MDM moved for leave to amend its answer to assert an affirmative defense based on Colorados statute of limitations, arguing the contract between the insured and MDM contained a Colorado choice of law provision. The trial court denied the motion as untimely and prejudicial to Travelers.

The indemnity case proceeded to a bench trial, and the trial court awarded damages to Travelers in the amount it expended in settling the underlying personal injury case, as well as its attorney fees in that case. The trial court also awarded Travelers its attorney fees and costs incurred in the indemnity action. MDM appeals from the judgment, the postjudgment order denying MDMs motion for a new trial and to set aside the judgment, and the postjudgment orders awarding costs and attorney fees.

MDM argues the trial court erred in denying the motion for leave to amend its answer. We find no abuse of discretion; we therefore affirm the judgment. The trial courts determination that MDM had waited too long to discover the contractual Colorado law issue and had further delayed in bringing the motion for leave to amend was fully supported by the record.

MDM also argues the trial court erred by awarding Travelers its nonstatutory costs incurred in the indemnity action, and we reverse the postjudgment order doing so. A party seeking nonstatutory costs or expenses (such as expert witness fees) under a contractual prevailing‑party attorney fees clause must plead and prove its entitlement to those costs or expenses. Travelers failed to do so. First, Travelerss complaint did not affirmatively request nonstatutory costs and expenses to notify MDM it would be seeking them. Second, Travelers never provided any evidence at trial of the nonstatutory costs and expenses requested.

Finally, MDM argues the trial court erred in entering a judgment awarding specific amounts for attorney fees and costs incurred in the indemnity action. The postjudgment order awarding attorney fees is affirmed for the reasons we explain. We direct the trial court to modify the judgment nunc pro tunc with the amounts of attorney fees and statutory costs actually proven up by Travelers in its postjudgment filings.

Statement of Facts and Procedural History

The May Department Stores Company retained R.A.S. Builders, Inc. (RAS), to serve as the general contractor for a remodeling project in Mission Viejo, California. RAS, in turn, contracted with MDM to perform masonry work and erect scaffolding. MDM then entered into a subcontract with Waco Scaffolding & Equipment (Waco) to perform the scaffolding work.

On September 11, 1999, Darren McLaren and Mark Davis, employees of MDM, were injured when scaffolding erected by Waco collapsed. McLaren, Davis, and Daviss wife filed a personal injury action against RAS, Waco, and other subcontractors on May 4, 2000. RAS tendered the defense of the lawsuit to Travelers. On August 28, 2000, Travelers tendered RASs defense to MDM pursuant to an indemnity provision in the contract between RAS and MDM; a copy of the contract containing the indemnity provision was enclosed with Travelerss letter tendering the defense. MDMs primary insurer, The Insurance Corporation of New York, accepted the tender.

On February 12, 2003, RAS settled the complaint filed by McLaren and the Davises; The Insurance Corporation of New York paid out its $1 million policy limit, and Travelers paid an additional $450,000. Travelers also paid $93,300 to settle a complaint‑in‑intervention by McLaren and Daviss workers compensation carrier.

On June 24, 2004, RAS filed the present action against MDM for equitable indemnity, express indemnity, apportionment of fault, and declaratory relief. RAS sought reimbursement of the amounts paid in settlement of and for attorney fees incurred in the underlying personal injury action. MDM answered the complaint on September 14, 2004, but did not assert either the California or the Colorado statute of limitations as an affirmative defense.

On February 28, 2005, by stipulation, RAS amended its complaint to name Travelers as the correct plaintiff, and to add a cause of action for subrogation. MDM answered the amended complaint on April 8, 2005, but again did not assert a statute of limitations defense under either California or Colorado law.

Travelers filed a motion for summary adjudication in July 2005. In its opposition to the motion, which was filed on October 18, 2005, MDM argued Travelerss express indemnity claim was time‑barred by Colorados statute of limitations. The hearing on Travelerss motion was continued to January 2006 because Travelers had failed to file a separate statement of undisputed facts with its motion. The parties then filed cross-motions for summary adjudication on November 4, 2005. In its motion, MDM again argued Travelerss express indemnity claim was time‑barred by Colorados statute of limitations.

On November 18, 2005, MDM moved for leave to amend its answer to assert the Colorado statute of limitations as an affirmative defense to the express indemnity cause of action. MDM supported the motion with a declaration by its counsel, reading in part: [T]he Answer to the Complaint was filed on September 14, 2004. This Answer listed several affirmative defenses. However, the Answer does not include affirmative defenses based upon the statute of limitations or lack of jurisdiction[.[1]] These defenses were omitted through mistake and inadvertence at the time of signing/filing.

Travelers opposed the motion for leave to amend on the ground it would be prejudiced by amendment because it had not had an opportunity to conduct discovery on the issues of waiver and estoppel to raise the statute. The trial court denied the motion for leave to amend. The Court finds that the motion is untimely and the amendments sought would be prejudicial to plaintiff. Subsequently, the trial court denied MDMs motion for summary adjudication, and granted Travelerss motion, concluding Travelers was entitled to subrogation and indemnity in the underlying personal injury case.[2]

After a bench trial, the court concluded the amount for which the personal injury lawsuit settled was reasonable, and the attorney fees incurred in that case were also reasonable. The court therefore awarded Travelers damages in the amount of $656,939, representing the $450,000 paid to settle the case, the $93,300 paid to settle the workers compensation claim, and the $113,639.14 incurred in attorney fees in the personal injury lawsuit.

The trial court also ruled Travelers could recover the attorney fees it incurred in the indemnity case, and invited Travelers to submit a request for those fees. Travelers prepared and submitted to the trial court a judgment providing for an award of $29,848 in costs and $140,972 in attorney fees. Travelers also filed a proposed statement of decision, reading in relevant part as follows: The Court, relying on the admissible testimony of the witnesses, as well as the exhibits entered into evidence finds the legal fees and costs paid . . . were reasonable and recoverable in the present action. MDM objected to the statement of decision because the trial court had not found the amounts of attorney fees and costs were reasonable, and no evidence had been introduced on the issue. (At trial, Travelerss main case director testified Travelers had incurred $111,782 in attorney fees and $16,371.53 in costs as of the date of trial, without differentiation between statutory and nonstatutory costs.) The trial court signed the statement of decision and the judgment without change on June 28, 2006.

MDM moved for a new trial and for an order setting aside the judgment and entering a different judgment pursuant to Code of Civil Procedure section 663. The trial court denied both motions on September 6, 2006.

Travelers filed a cost memorandum seeking a total of $168,420.17: $6,874 in statutory costs, $23,006.67 in nonstatutory costs, and $138,539.50 in attorney fees. MDM moved to tax costs. On September 12, 2006, the trial court denied the motion to tax costs in part, and awarded Travelers a total of $23,974.22 in costs: $5,407.20 in statutory costs and $18,567.02 in nonstatutory costs. The court did not address the issue of attorney fees, and directed Travelers to prepare a motion for attorney fees. Travelers did so, and MDM filed opposition. On October 24, the trial court awarded Travelers $140,884 in attorney fees incurred in the indemnity action.

MDM timely appealed from the judgment, the order denying the motion to set aside the judgment, the order awarding costs and denying the motion to tax costs, and the order awarding Travelers its attorney fees.

Discussion

I.

Did the trial court err in denying MDMs motion for leave to amend its answer to assert the application of the Colorado statute of limitations?

We review the trial courts order denying MDMs motion for leave to amend its answer for abuse of discretion. (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175.) Absent a manifest or gross abuse of discretion, the trial courts ruling should be upheld. (Ibid.)

A trial court should generally permit amendment of the pleadings at any stage of the proceedings, even during trial. (Melican v. Regents of University of California, supra, 151 Cal.App.4th at p. 175.) Requests for leave to amend after a motion for summary judgment has been filed are routinely and liberally granted. (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663‑1664.)

In particular, liberality should be displayed in allowing amendments to answers, for a defendant denied leave to amend is permanently deprived of a defense. (Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159; see Royal Thrift & Loan Co. v. County Escrow, Inc. (2004) 123 Cal.App.4th 24, 41.) However, a trial court may deny a request for leave to amend if the proposed amendment would cause prejudice to the other party, or if the moving party has failed to act diligently in requesting amendment. (Melican v. Regents of University of California, supra, 151 Cal.App.4th at p. 175.) Unwarranted delay in seeking leave to amend is, in and of itself, a sufficient reason to deny a motion for leave to amend. (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939‑940.)

To the extent the cases cited by MDM are on point, many support affirming the trial courts decision.

In Hulsey v. Koehler, supra, 218 Cal.App.3d at page 1159, the appellate court concluded the trial court had not abused its discretion in denying the defendants motion at trial to amend its answer to conform to proof. The defendants counsel admitted he only discovered the possible defense two days before trial while reading a deposition transcript; the trial court found the defendant had shown an unreasonable lack of diligence. (Ibid.)

In Redevelopment Agency v. Herrold (1978) 86 Cal.App.3d 1024, 1033, the trial court abused its discretion in denying the defendants motion for leave to amend his answer in an eminent domain action. The defendant sought to add as a defense the redevelopment agencys bad faith in acquiring the property because it did not intend to use the property as it had publicly stated. (Id. at pp. 1032‑1033.) Granting the motion might have caused delay of the trial to permit the defendant to conduct additional discovery, but ultimately that delay would have been the plaintiffs fault because it had earlier refused to respond to discovery on the topic. (Id. at pp. 1027, 1032.) Lack of diligence in asserting the defense was not an issue.

In Ramos v. City of Santa Clara (1973) 35 Cal.App.3d 93, 95, summary judgment was granted based on the defense of accord and satisfaction, which was never raised in the defendants answer. The plaintiff had not raised the failure to assert the defense in its opposition to the summary judgment motion, and did not argue that the late addition of accord and satisfaction as a defense prejudiced him or took him by surprise. (Id. at p. 96.)

In Petersen v. W. T. Grant Co. (1974) 41 Cal.App.3d 217, 222‑223, the trial court erred by granting a motion for judgment on the pleadings made orally at trial, which raised for the first time the issue of the statute of limitations, because the statute of limitations was not a substantive matter that could be raised for the first time in a motion for judgment on the pleadings.  The trial court had not ruled on the defendants motion for leave to amend their answer to add the statute of limitations as a defense, and the appellate court remanded for consideration of the plaintiffs estoppel arguments and for a balancing of the equities. (Id. at pp. 223‑224.)

The contract between RAS and MDM unquestionably provides for the application of Colorado law: This Subcontract shall be governed by and construed and enforced in accordance with the laws of the State of Colorado, United States of America, irrespective of the fact that any one of the parties now is, or may become a resident of a different state or country. MDMs proposed amended answer would have added as an affirmative defense the application of Colorado Revised Statutes section 13‑80‑104, subdivision (1)(b)(II), which provides that certain indemnity and contribution claims arise at the time the underlying claim is settled, and that the statute of limitations on these claims is 90 days.

We find no abuse of discretion in the trial courts denial of MDMs motion for leave to amend its answer. The trial courts conclusion that the motion was untimely due to MDMs failure to act diligently in requesting amendment is amply supported by the record. The following timeline is relevant to our analysis:

August 28, 2000 Travelers, as RASs insurer, tenders defense of the underlying personal injury case to MDM, attaches a copy of the RAS/MDM contract, and specifies it is seeking indemnity based on the terms of the contract

June 24, 2004 RAS sues MDM for, inter alia, express indemnity

September 14, 2004 MDM files its answer to the complaint for indemnity

April 8, 2005 MDM files its answer to the amended complaint for indemnity

October 18, 2005 MDM files an opposition to Travelerss motion for summary adjudication, arguing Travelerss claim for express indemnity is barred by Colorados statute of limitations

November 4, 2005 MDM moves for summary adjudication, arguing Travelerss claim for express indemnity is barred by Colorados statute of limitations

November 18, 2005 MDM moves for leave to amend its answer to assert an affirmative defense based on Colorados statute of limitations

MDM provided no explanation for its failure to assert the Colorado statute of limitations in a timely manner. In the declaration filed in support of the motion for leave to amend, MDMs counsel stated the statute of limitations defense had not been included through mistake and inadvertence at the time the answer to the original complaint was filed. This declaration is conclusory and provides no explanation of the mistake or inadvertence, nor does it address why the defense was not included in the answer to the amended complaint or why leave to amend was not sought earlier.

On the day of the hearing on the motion for leave to amend, MDMs counsel filed a supplemental declaration to address when we became aware and why there was the delay. In relevant part, the supplemental declaration states: [W]hen plaintiffs motion for summary judgment was reviewed, and opposition organized, it came to this Declarants attention for the first time that the contract clause through which plaintiff sought summary judgment also indicated that the contract was to be interpreted/enforced under Colorado law (9.3). This was ascertained in approximately the first week in October 2005. This was also the same time as the opposition to plaintiffs motion for summary judgment was being prepared/filed. Plaintiff was then also seeking to continue the hearing date on its motion for summary judgment now set for January 25, 2006. The motion to amend the answer to raise the issues regarding Colorado law was prepared and filed shortly thereafter on November 18, 2005.

In the supplemental declaration, MDMs counsel still failed to explain why MDM did not read the relevant contract before beginning to draft its opposition to the motion for summary adjudication. MDM was provided a copy of the contract no later than August 2000, as shown ante. MDM was sued for contractual indemnity in June 2004 and filed its answer in September 2004. There is no explanation in the record why the clause in the contract was not discovered years earlier than October 2005. Nor did MDMs counsel explain why it took approximately six weeks after the issue was first identified, which itself was after such a long lapse in time, to request leave to amend.

Because we conclude the trial court did not abuse its discretion in denying the motion for leave to amend based on untimeliness, we need not address the issue of alleged prejudice to Travelers.

II.

Attorney Fees and Costs

MDM also argues the trial court erred by awarding Travelers its attorney fees and nonstatutory costs incurred in the indemnity action for three reasons: (1) the contract between RAS and MDM did not authorize recovery of nonstatutory costs;[3] (2) Travelers did not plead and prove the nonstatutory costs; and (3) the trial court exceeded its jurisdiction by entering an award of attorney fees and costs before a memorandum of costs and a motion for attorney fees were filed, and then entering additional awards without vacating the original order.

We review de novo the trial courts determination that a party is legally entitled to recover attorney fees and costs. (Whiteside v. Tenet Healthcare Corp. (2002) 101 Cal.App.4th 693, 707.) The amount of fees and costs to be awarded is a matter within the trial courts discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)

The contract between RAS and MDM contains the following indemnity provision: To the fullest extent permitted by law, [MDM] shall indemnify and hold harmless the Owner, Contractor and Architect and all of their agents and employees from and against all claims, damages, losses of any kind, including economic losses, costs, and expenses, including without limitation, attorneys fees, arising out of, or resulting from, the performance, under this Subcontract, of [MDM], [MDM]s subcontractors, or anyone directly or indirectly employed by them, or anyone, for whose acts they may be liable regardless of whether or not such claim, damage, loss, or expense is caused in part by a party indemnified hereunder. The contract also contains the following prevailing party provision: In any action to enforce any of the provisions or rights under this Subcontract, the unsuccessful party to such litigation shall pay all of the costs, expenses, and reasonable attorneys fees of the successful party or parties.

Given the broad language of the indemnity and prevailing party provisions of the contract, we conclude Travelers would be legally entitled to recover costs and expenses not authorized by Code of Civil Procedure section 1033.5 if those costs and expenses were pleaded and proven. (Hsu v. Semiconductor Systems, Inc. (2005) 126 Cal.App.4th 1330, 1341; Carwash of America-PO v. Windswept Ventures No. I (2002) 97 Cal.App.4th 540, 541; First Nationwide Bank v. Mountain Cascade, Inc. (2000) 77 Cal.App.4th 871, 878-879; Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 491‑492.) The reasons for this pleading and proof requirement are readily apparent. As our Supreme Court observed in Davis [v. KGO‑T.V., Inc. (1998) 17 Cal.4th 436, 446, footnote 5], the proper interpretation of a contractual agreement for shifting litigation costs is a question of fact that turns on the intentions of the contracting parties. [Citation.] Where the contractual provision is ambiguous, extrinsic evidence may be warranted. Adverse parties must be put on notice through the pleadings that this contractual theory will be asserted, and the issue must be submitted to the trier of fact for resolution pursuant to a prejudgment evidentiary proceeding, not a summary postjudgment motion. (First Nationwide Bank v. Mountain Cascade, Inc., supra, 77 Cal.App.4th at p. 879.)

In this case, however, Travelers neither pleaded nor proved the right to recover nonstatutory costs under the RAS/MDM contract. The original complaint does not mention the contracts prevailing party provision. The prayer reads in full as follows:

WHEREFORE, Plaintiff prays that the Court make its declaration and orders and enters its judgment against Defendants, and each of them, as follows:

1. For total and complete indemnity for any judgments rendered against Plaintiff;

2. For judgment in a proportionate share from each Defendant;

3. For a judicial determination that Defendant was the legal cause of any injuries and damages sustained by Plaintiff and that Defendant indemnify Plaintiff, either completely or partially, for all sums of money which was paid by Plaintiff.

4. For costs of suit incurred herein;

5. For attorney fees as allowed by contract or law;

6. For property damage according[] to proof, and

7. For such other and further relief as is fair, just and equitable.

When Travelers amended its complaint, it submitted only an amendment, not a fully amended complaint. It is thus unclear whether the prayer included in the amendment was intended to supplement or to fully replace the prayer in the original complaint. The prayer included in the amendment reads in full as follows:

WHEREFORE, Plaintiff prays that the Court make its declaration and orders and enters its judgment against Defendants and each of them, as follows:

1. For total and complete indemnity for all defense and indemnity payments incurred by Plaintiff;

2. For a judicial determination that Defendant was the legal cause of any injuries and damages sustained by Plaintiff and that Defendant indemnify Plaintiff, either completely or partially, for all sums of money which was paid by Plaintiff.

3. For costs of suit incurred herein;

4. For attorney fees as allowed by contract or law;

5. For such other and further relief as is fair, just and equitable.

Travelerss request for attorney fees as allowed by contract or law does not encompass a request for nonstatutory costs and expenses, even if those costs are allowed by the same contractual language. [A]ttorney fees and the expenses of litigation, whether termed costs, disbursements, outlays, or something else, are mutually exclusive, that is, attorney fees do not include such costs and costs do not include attorney fees. [Citation.] (Hsu v. Semiconductor Systems, Inc., supra, 126 Cal.App.4th at p. 1342.)

Costs of suit generally refers to those statutory costs recoverable under Code of Civil Procedure sections 1032 and 1033.5. (Civ. Code,  1717, subd. (a) [when attorney fees are recoverable by the prevailing party under the terms of the parties contract, they shall be an element of the costs of suit]; Biren v. Equality Emergency Medical Group, Inc. (2002) 102 Cal.App.4th 125, 139; Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 147; McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1159; Muega v. Menocal (1996) 50 Cal.App.4th 868, 875.) Unlike the reference to attorney fees, the reference to costs of suit in Travelerss complaint does not specify it is to be determined as allowed by contract or law. Therefore, we conclude this reference is not a request for an award of nonstatutory costs and expenses pursuant to the parties contract, but rather a request for statutory costs.

Travelers failed to plead that it would seek an award of nonstatutory costs and expenses from MDM under the terms of the RAS/MDM contract. Therefore, Travelers could not recover such costs and expenses at the conclusion of trial.

Even if the complaint or amendment could be read to plead a request for an award of nonstatutory costs and expenses, Travelers failed to prove an amount of nonstatutory costs to be recovered. At trial, Travelerss main case director testified as follows:

Q. Did St. Paul Travelers incur any fees as a result of having to bring this lawsuit that were here today for to recover amounts owed under the contract?

A. Yes.

Q. And what were those fees?

A. Well, through the end of February last month the attorney fees incurred were $111,782 and the costs incurred are $16,371.53, for a total fees and costs of $128,153.53, plus this month is March has not been added in.

Q. So you expect to incur additional fees from my office for the time spent up through judgment in this case?

A. Yes, sir.

Q. And those are fees you would not have had to pay had Mark Davis fully indemnified R.A.S. Builders according to the contract; correct?

A. Yes, sir.

This testimony is insufficient to support the trial courts award of $18,567.02 in nonstatutory costs. The testimony did not differentiate between statutory and nonstatutory costs. Moreover, the amount of total costs testified to is less than the amount of nonstatutory costs awarded, and therefore cannot serve as substantial evidence to support the nonstatutory costs award.[4]

We conclude Travelers is not entitled to an award of nonstatutory costs and expenses in the indemnity case because it failed to plead or prove its entitlement to such costs and expenses.

Finally, MDM argues the trial court erred by entering a judgment containing a specific award of attorney fees and costs before Travelers had proven up the amount of fees and costs through a motion for attorney fees and a memorandum of costs. MDM is correct. The trial courts error is particularly troubling because the amount of fees and costs specified in the judgment prepared by Travelers (and signed by the court without change) far exceeded the amounts to which Travelerss main case director testified at trial.[5]

However, we find no prejudice. Travelers did, ultimately, file the necessary documents to support its claim for attorney fees and statutory costs within the required time frames. (Cal. Rules of Court, rules 3.1700(a)(1), 3.1702(b)(1).) MDM had an opportunity to and did challenge Travelerss claim; MDM filed a written opposition to the motion for attorney fees and a motion to tax costs. The amounts of attorney fees and statutory costs proven up by Travelers are less than the amounts specified in the judgment.[6] We direct the trial court to modify the judgment to reflect the amount of attorney fees and costs actually proven through the motion for attorney fees and the memorandum of costs.

Disposition

The judgment is affirmed. The postjudgment order dated September 6, 2006 is affirmed. The postjudgment order dated September 12, 2006, referencing an award of nonstatutory costs, is reversed. The postjudgment order dated October 24, 2006, referencing an award of attorney fees, is affirmed. The trial court is directed to modify the judgment nunc pro tunc to June 28, 2006, to reflect that Travelers is entitled to recover attorney fees in the amount of $140,884 and statutory costs in the amount of $5,407.20. Because each party prevailed in part on appeal, neither party shall recover costs on appeal.

FYBEL, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

ARONSON, J.

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Analysis and review provided by Poway Property line attorney.

[1] MDM argued to the trial court that the contract between RAS and MDM contained a Colorado forum selection clause, and the entire case should be dismissed because the Colorado courts had exclusive jurisdiction. MDM is not pursuing that argument on appeal.

[2] The propriety of the order denying MDMs motion for summary adjudication, and granting Travelerss competing motion, is not before us on appeal.

[3] In its opening brief, MDM also argues the contract did not authorize an award of attorney fees. In its reply brief, however, MDM concedes that the contracts prevailing party clause is sufficiently broad to encompass the attorney fees award.

[4] On appeal, Travelers directs our attention to trial exhibit No. 399 as support for the trial courts award of nonstatutory costs incurred in the indemnity action. Exhibit No. 399, however, is the attorneys billing statements from the underlying personal injury action, and is therefore of no value in determining whether there was sufficient evidence to support the trial courts nonstatutory costs award in the indemnity action.

[5] At trial, Travelerss main case director testified Travelers had incurred $111,782 in attorney fees and $16,371.53 in costs, plus an unknown additional amount for recently incurred fees and costs. The judgment provided for $140,972 in attorney fees and $29,848 in costs.

[6] The judgment awarded Travelers $29,848 in costs, versus $5,407.20 in statutory costs awarded in the order denying the motion to tax costs. The judgment also awarded Travelers $140,972 in attorney fees, as compared to $140,884, which was awarded when the trial court granted the motion for attorney fees.