American Family Mutual Insurance Company v. National Fire & Marine et al

Filing 1035

ORDER granting 1030 National Fire & Marine Insurance Co.'s Final Motion for Attorney Fees and Costs in the amount of $46,200.10 for attorneys' fees and non-taxable costs. The Clerk shall enter judgment against Plaintiff American Fa mily Mutual Insurance Company and in favor of National Fire & Marine Insurance Company for $46,200.10 for attorneys' fees and non-taxable costs, plus interest at the federal rate from the date of judgment until paid. Signed by Judge Neil V Wake on 4/6/12.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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American Family Mutual Insurance Co., a)
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Wisconsin corporation,
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Plaintiff,
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vs.
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National Fire & Marine Insurance Co., a)
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foreign corporation; et al.,
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Defendants.
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No. CV 07-02237-PHX-NVW
ORDER

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Before the Court is National Fire & Marine Insurance Co.’s Final Motion for

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Attorneys’ Fees and Costs (Doc. 1030). National Fire & Marine requests an award of

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$46,200.101 in attorneys’ fees and non-taxable costs.

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In this action, Plaintiff American Family Mutual Insurance Co. sued numerous

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insurance companies for equitable contribution related to settlement of an underlying

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multimillion dollar construction defect case. To reduce unnecessary litigation expense,

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the equitable contribution action proceeded in phases that focused on common defenses.

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National Fire & Marine obtained summary judgment for one of its insureds during the

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first phase and summary judgment for its remaining insureds during the second phase.

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Although the first phase summary judgment for the one insured was reversed on appeal,

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National Fire & Marine initially requested $46,317.60, but concedes that $117.50 was
inadvertently included twice in its original request.

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National Fire & Marine obtained a final judgment in its favor for that insured on remand.

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Thus, National Fire & Marine prevailed entirely on Plaintiff’s equitable contribution

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action.

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Plaintiff’s objections to specific time entries submitted by National Fire & Marine

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are overruled except for one duplicative entry in the amount of $117.50. As previously

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decided, monitoring litigation related to the defenses of other Defendants was reasonably

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related to the defense of National Fire & Marine, and Plaintiff could have controlled costs

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incurred searching for relevant documents in the voluminous document depository by

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producing the documents responsive to discovery requests directly to Defendants.

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National Fire & Marine is eligible for award of attorneys’ fees and non-taxable

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costs under A.R.S. § 12-341.01(A). None of the factors to be considered in determining

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entitlement under § 12-341.01(A) weighs against a fee award, and awarding fees to the

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successful parties provides incentive for all parties to closely assess the likelihood of

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success in their litigation strategies. See Associated Indem. Corp. v. Warner, 143 Ariz.

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567, 694 P.2d 1181 (1985).

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On March 4, 2010, judgment was entered against Plaintiff and in favor of National

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Fire & Marine in the amount of $16,596.00 for attorneys’ fees and $0.00 for non-taxable

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costs, plus interest at the federal rate from the date of judgment until paid, based on

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National Fire & Marine prevailing on first phase summary judgment. (Doc. 875.) The

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present award includes the amount awarded March 4, 2010, and supersedes the March 4,

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2010 judgment in National Fire & Marine’s favor.

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On December 20, 2010, judgment was entered in favor of National Fire & Marine

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and against Plaintiff in the amount of $228,688.50 for attorneys’ fees, plus interest at the

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federal rate from the date of judgment until paid. (Doc. 1008.) The present award does

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not include and is made in addition to the amount awarded in the judgment of December

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20, 2010.

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IT IS THEREFORE ORDERED that National Fire & Marine Insurance Co.’s

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Final Motion for Attorneys’ Fees and Costs (Doc. 1030) is granted in the amount of

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$46,200.10 for attorneys’ fees and non-taxable costs.

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IT IS FURTHER ORDERED that the Clerk enter judgment pursuant to Fed. R.

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Civ. P. 54(d) and LRCiv 54.2 against Plaintiff American Family Mutual Insurance

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Company and in favor of National Fire & Marine Insurance Company for $46,200.10 for

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attorneys’ fees and non-taxable costs, plus interest at the federal rate from the date of

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judgment until paid.

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DATED this 6th day of April, 2012.

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