Winninger v. Kirchner

── Winninger v. Kirchner ── Court: Colorado Court of Appeals Date: May 14, 2026 Category: General 25CA0553 Winninger v Kirchner 05-14-2026 COLORADO COURT OF APPEALS Court of Appeals No. 25CA0553 Eagle County District Court No. 17CV30102 Honorable Paul R. Dunkelman, Judge Lindsay Winninger and Sports Rehab Consulting, LLC, a Colorado limited liability company, Plaintiffs-Appellants, v. Doris Kirchner, Defendant-Appellee. ORDER AFFIRMED Division VII Opinion by JUDGE PAWAR Johnson and Gomez, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 14, 2026 Kildow & Braunschweig LLC, Sonya R. Braunschweig, Minneapolis, Minnesota, for Plaintiffs-Appellants Fennemore Craig, P.C., John M. McHugh, Allison M. Hester, Denver, Colorado, for Defendant-Appellee ¶1 In this appeal, plaintiffs challenge the award of costs to prevailing codefendant, Doris Kirchner, on the ground that the costs were paid by and also necessary for the defense of nonprevailing codefendant, Vail Clinic, Inc., d/b/a Vail Valley Medical Center (Vail Health). We affirm. I. Background ¶2 Plaintiffs, Lindsay Winninger and Sports Rehab Consulting, LLC, filed claims against Vail Health and Kirchner, Vail Health’s CEO. Vail Health, but not Kirchner, filed counterclaims against plaintiffs. During much of the litigation, Kirchner and Vail Health were represented by the same attorneys. ¶3 All the claims and counterclaims were unsuccessful — plaintiffs’ claims were dismissed on summary judgment, and Vail Health’s counterclaims were either voluntarily dismissed, dismissed on summary judgment, or rejected by a jury. ¶4 Both Kirchner and Vail Health requested their costs as prevailing parties. The district court determined that Kirchner was a prevailing party because she prevailed on all the claims in which she was a party (she successfully defended against all of plaintiffs’ claims). But the court determined that Vail Health was not a 1  prevailing party and therefore not entitled to costs because, although it successfully defended against plaintiffs’ claims, its own counterclaims failed. ¶5 The court then held a costs hearing. It recognized that Vail Health had paid Kirchner’s costs — Vail Health agreed to indemnify Kirchner for her costs because plaintiffs’ claims against her were based on conduct undertaken in her professional capacity as Vail Health’s CEO. The court also recognized that many costs incurred by the Kirchner-Vail Health attorneys were incurred for the defense of both codefendants. ¶6 Ultimately, the court ordered plaintiffs to pay Kirchner $53,952.18 in costs. In its written order, the court found that all the awarded costs were reasonable and necessary for Kirchner’s defense, irrespective of whether they might have also been necessary for Vail Health’s defense. ¶7 Plaintiffs appeal the cost award. As we understand it, they argue that, even though Kirchner was a prevailing party, she was ineligible for the award because at least some of the awarded costs were also necessary to Vail Health’s defense, and Vail Health paid 2  the costs. We conclude that none of plaintiffs’ arguments warrant relief. II. Costs Award ¶8 We review a trial court’s costs award for an abuse of discretion. Gallegos Fam. Props., LLC v. Colo. Groundwater Comm’n, 2017 CO 73, ¶ 37. However, we review a court’s interpretation of statutes and rules in awarding costs de novo. Id. ¶9 C.R.C.P. 54(d) makes a prevailing party eligible to receive its reasonable and necessary costs of litigation. Id. at ¶ 42. There is no question that for costs to be awardable, they must have been incurred by the prevailing party, not another party. But the fact that “an insurer