The Hanover Insurance Company et al v. Anova Food, LLC et al

Filing 219

ORDER AWARDING ATTORNEYS' FEES INCURRED IN DEFENSE OF ANOVA FOOD, LLC re 154 - Signed by JUDGE HELEN GILLMOR on 6/9/2017. "The Court FINDS that the Hanover Companies owe an additional $250,971.41 in att orneys' fees for the defense of Anova Food, LLC in the Underlying Lawsuit. There are no remaining issues before the Court. The Clerk of Court is DIRECTED to enter judgment and CLOSE THE CASE." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
THE HANOVER INSURANCE COMPANY ;
MASSACHUSETTS BAY INSURANCE
COMPANY ,

Ci v . No . 14-00281 HG-RLP

Plaintiffs ,
vs .
ANOVA FOOD , LLC ,
Defendant .

ANOVA FOOD , LLC ,
Counter Cla i mant ,
vs .
THE HANOVER INSURANCE COMPANY ;
MASSACHUSETTS BAY INSURANCE
COMPANY ,
Counter Def endan ts .

ORDER AWARDING ATTORNEYS ' FEES INCURRED IN DEFENSE OF ANO
VA FOOD,
LLC
The Hanove r Compan i es enter ed i nto an i nsur ance contr act
that r equ ired them to defend Anova Food , LLC i n an Unde r ly i ng
Lawsuit , Kowalski v. Anova Food , LLC , et al. , Civ . No . 1100795HG-RLP .
The Cour t has al r eady i ssued thr ee wri tten o r der s f i ndi ng

1

that the Hanover Companies are required to pay reasonable
attorneys’ fees for defending Anova Food, LLC in the Underlying
Lawsuit.
The Hanover Companies are responsible for the Zobrist Law
Firm’s attorneys’ fees between October 12, 2012 and December 10,
2013.
The Court has requested briefing on three separate occasions
with respect to the outstanding attorneys’ fees owed.

The

Parties agree that $284,624.72 in attorneys’ fees have already
been paid.
The Court FINDS that the Hanover Companies owe an additional
$250,971.41 in attorneys’ fees for the defense of Anova Food, LLC
in the Underlying Lawsuit.
PROCEDURAL HISTORY
On June 19, 2014, the Hanover Companies filed a Complaint.
(ECF No. 1).
On May 29, 2015, the Hanover Insurance Companies filed a
First Amended Complaint.

(ECF No. 39).

On March 24, 2016, the Court issued an ORDER GRANTING, IN
PART, AND DENYING, IN PART, DEFENDANT/COUNTERCLAIMANT ANOVA FOOD,
LLC’S MOTION FOR PARTIAL SUMMARY JUDGMENT.

(ECF No. 113).

On June 23, 2016, the Court held a hearing on the Parties’
Motions for Summary Judgment.

(ECF No. 148).

2

At the hearing,

the Court instructed the Hanover Companies to file a Statement as
to any remaining issues regarding the attorneys’ fees owed to the
Zobrist Law Firm.

(Id.)

On June 29, 2016, the Court issued an ORDER DISMISSING ALL
CLAIMS AGAINST DEFENDANT ANOVA FOOD, INC. AND DENYING PLAINTIFFS
THE HANOVER INSURANCE COMPANY AND MASSACHUSETTS BAY INSURANCE
COMPANY’S MOTION FOR SUMMARY JUDGMENT AND GRANTING, IN PART, AND
DENYING, IN PART, DEFENDANT ANOVA FOOD, LLC’S MOTION FOR PARTIAL
SUMMARY JUDGMENT.

(ECF No. 151).

On June 30, 2016, the Hanover Companies filed PLAINTIFFS THE
HANOVER COMPANY AND MASSACHUSETTS BAY INSURANCE COMPANY’S
STATEMENT AS TO REMAINING ISSUES REGARDING THE ZOBRIST ATTORNEYS’
FEES.

(ECF No. 154).

On July 14, 2016, the Court issued a Minute Order
instructing Defendant Anova Food, LLC to respond to Plaintiff’s
Statement as to the Zobrist Law Firm’s Attorneys’ Fees.

(ECF No.

171).
On July 28, 2016, Anova Food, LLC filed a TRIAL MEMORANDUM
IN SUPPORT OF THE REASONABLENESS OF ZOBRIST LAW’S ATTORNEYS’
FEES.

(ECF No. 177).

On August 10, 2016, the Hanover Companies submitted its
TRIAL MEMORANDUM IN SUPPORT OF THEIR STATEMENT AS TO REMAINING
ISSUES REGARDING THE ZOBRIST ATTORNEYS’ FEES.

(ECF No. 185).

On August 31, 2016, the Court issued a Minute Order denying

3

Anova Food, LLC’s Motion for Reconsideration.

(ECF No. 187).

On October 21, 2016, the Court issued an ORDER DENYING
COUNTER-CLAIMANT ANOVA FOOD, LLC’S BAD FAITH CLAIM.

(ECF No.

188).
On October 24, 2016, the Court issued an ORDER ON REMAINING
ISSUES REGARDING THE ZOBRIST LAW FIRM’S ATTORNEYS’ FEES.

(ECF

No. 189).
On November 28, 2016, the Hanover Companies filed PLAINTIFFS
THE HANOVER INSURANCE COMPANY AND MASSACHUSETTS BAY INSURANCE
COMPANY’S ACCOUNTING.

(ECF Nos. 190-213).

On December 28, 2016, Anova Food, LLC filed its RESPONSE TO
THE HANVOER COMPANIES’ ACCOUNTING.

(ECF No. 214).

On January 4, 2017, Anova Food, LLC filed a MOTION FOR
EXTENSION OF TIME AND RESPONSE TO PLAINTIFFS-COUNTERCLAIM
DEFENDANTS THE HANOVER COMPANIES’ ACCOUNTING.

(ECF No. 215).

On January 11, 2017, the Court issued a Minute Order
granting Anova Food, LLC’s Motion for Extension and considered
its Response.

(ECF No. 217).

The Court also allowed the Hanover

Companies additional time to file its Reply.

(Id.)

On January 31, 2017, the Hanover Companies filed their
Reply.

(ECF No. 218).
BACKGROUND

Defendant/Counter-Claimant Anova Food, LLC (“Anova LLC”) was
covered by Plaintiffs/Counter-Defendants the Hanover Insurance
4

Company and Massachusetts Bay Insurance Company’s (“the Hanover
Companies”) four commercial liability insurance policies that
were in effect between July 1, 2010 and July 11, 2014.

(See

Insurance Policies attached as Exs. B, C, D to Pla.’s First
Amended Complaint, ECF Nos. 39-2—6).
Anova LLC incurred attorneys’ fees from the Zobrist Law Firm
as a result of the Underlying Lawsuit filed against it in
Kowalski v. Anova Food, LLC, et al., Civ. No. 11-00795HG-RLP.
On March 24, 2016, the Court ruled that the Hanover
Companies had a duty to defend Anova LLC in the Underlying
Lawsuit.

(March 24, 2016 Order Granting, In Part, and Denying,

In Part, Defendant/Counter-Claimant Anova Food, LLC’s Motion for
Partial Summary Judgment at pp. 26-30, ECF No. 113).
Due to the conflict in the evidence before the Court, there
was no ruling as to the time period for which reasonable
attorneys’ fees were owed in the March 24, 2016 Order.

(Id. at

pp. 40-41).
The Parties filed additional summary judgment motions that
addressed the time period for which outstanding attorneys’ fees
were owed.
On June 29, 2016, the Court issued an Order on the Parties’
Motions for Summary Judgment and ruled that Anova LLC is entitled
to reasonable attorneys’ fees incurred by the Zobrist Law Firm
from October 12, 2012 to December 10, 2013.

5

(June 29, 2016 Order

Denying the Hanover Companies’ Motion for Summary Judgment and
Granting, In Part, and Denying, In Part, Anova LLC’s Motion for
Partial Summary Judgment at pp. 49-55, ECF No. 151).
The Parties disputed the amount of attorneys’ fees that were
“reasonable” for the period between October 12, 2012 and December
10, 2013.

The Parties filed additional briefing as to the

“reasonableness” of any additional attorneys’ fees.
On October 24, 2016, the Court issued another written order,
entitled, “Order on Remaining Issues Regarding the Zobrist Law
Firm’s Attorneys’ Fees.”

The Court set forth the standard for

awarding attorneys’ fees and ordered additional briefing from the
Parties.

(October 24, 2016 Order on Remaining Issues Regarding

the Zobrist Law Firm’s Attorneys’ Fees, ECF No. 189).
The Parties filed the additional briefing requested.
Outstanding Balance of Attorneys’ Fees Owed
The Zobrist Law Firm submitted five separate invoices to the
Hanover Companies totaling $669,778.17 in billings for attorneys’
fees.

(See Billing Invoices attached as Ex. E to Pla.’s

Accounting, ECF No. 191-1—6).
The Zobrist Law Firm was paid $284,624.721 out of the
$669,778.17 in attorneys’ fees it billed.

1

(See Payment Receipts

The Parties agree that the Hanover Companies paid
$206,204.76 and OneBeacon Insurance paid $78,419.96 in fees to
the Zobrist Law Firm for a total of $284,624.72.
6

attached as Ex. F to Pla.’s Accounting, ECF No. 192-1—4;
Declaration of Anova LLC Member Craig Marshall at ¶ 33, ECF No.
104).
The Parties agree that attorneys’ fees in the amount of
$352,121.46 remain in dispute as set forth in the table below.
(Pla.’s Accounting at p. 9, ECF No. 190; Def.’s Response at p.
19, ECF No. 214).

ACCOUNTING OF ZOBRIST LAW
FIRM ATTORNEYS’ FEES
Total Zobrist Law Firm Billings

$

669,778.18

Fees Already Paid

- $

284,624.72

Pre- and Post-Tender Fees Not
Recoverable

- $

33,032.00

$

352,121.46

OUTSTANDING FEES IN DISPUTE

The Hanover Companies assert that the Zobrist Law Firm is
not entitled to any of the remaining $352,121.46 fees billed.
Anova LLC argues that the Zobrist Law Firm is entitled to
the entirety of the remaining $352,121.46 for which they billed.
STANDARD OF REVIEW
The Supreme Court of Florida has found that the federal
lodestar approach provides an objective structure to determine
reasonable attorney fees.

Florida Patient’s Compensation Fund v.

Rowe, 472 So.2d 1145, 1149-50 (Fla. 1985).

7

Pursuant to Florida

law, courts determine reasonable attorney fees by analyzing the
following criteria:
(1)

The time and labor required, the novelty and difficulty
of the question involved, and the skill requisite to
perform the legal service properly;

(2)

The likelihood, if apparent to the client, that the
acceptance of the particular employment will preclude
other employment by the lawyer;

(3)

The fee customarily charged in the locality for similar
legal services;

(4)

The amount involved and the results obtained;

(5)

The time limitations imposed by the client or by the
circumstances;

(6)

The nature and length of the professional relationship
with the client;

(7)

The experience, reputation, and ability of the lawyer
or lawyers performing the services; and,

(8)

Whether the fee is fixed or contingent.

Rowe, 472 So.2d at 1150 (citing Rule 2-106(b) of the Florida
Bar Code of Professional Responsibility).
The party seeking attorneys’ fees must present records
detailing the amount of work performed to determine the
reasonable hours expended, which is multiplied by a reasonable
hourly rate to determine the lodestar.

Id.; Standard Guar. Ins.

Co. v. Quanstrom, 555 So.2d 828, 833-34 (Fla. 1990).

Once the

court arrives at the lodestar figure, it may add or subtract from
the fee based upon a contingency risk factor and the results
obtained.

Rowe, 472 So.2d at 1151.

8

The lodestar method is used to compute reasonable attorneys’
fees pursuant to various Florida statutory provisions, but it is
also used to calculate reasonable attorneys’ fee awards pursuant
to the parties’ contractual agreement.

Moore v. State Farm Mut.

Auto. Ins. Co., 916 So.2d 871, 877 (Fla. Dist. Ct. App. 2005).
When the agreement regarding payment of attorney fees does
not provide for a specific fee amount or percentage of recovery,
but rather states that the fee will be a reasonable amount, it is
up to the court to determine the reasonable amount of the fee.
Id. at 878-79.
ANALYSIS
As an initial matter, the Hanover Companies assert in their
memorandum that OneBeacon Insurance is responsible for 25% of any
outstanding attorneys’ fees owed for the defense of Anova Food,
LLC.

The Hanover Companies claim the 25% portion is based on a

separate agreement they entered into with OneBeacon Insurance as
to the delegation of attorneys’ fees that would be paid for the
defense of Anova Food, LLC.

(Pla.’s Accounting at pp. 6-7, ECF

No. 190).
The Hanover Companies’ agreement with OneBeacon Insurance is
not before the Court.

OneBeacon Insurance is not a party to this

case and the Hanover Companies never filed a third-party
complaint against them.

The Court will not consider any aspect

of the alleged agreement between the Hanover Companies and
9

OneBeacon Insurance.
A.

Lodestar Method
The Court has already ruled that the Hanover Companies owe

all reasonable attorneys’ fees of the Zobrist Law Firm, incurred
in defending Anova LLC in the Underlying Lawsuit, from October
12, 2012 to December 10, 2013.
The Court has also ruled that the lodestar method applies in
this case.

(Order dated Oct. 24, 2016 at p. 8, ECF No. 189).

The only issue remaining concerns the disputed outstanding
fees of $352,121.46.
The Court uses the lodestar method in determining reasonable
fees, which is calculated by multiplying the number of hours
reasonably expected by a reasonable hourly rate.

Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983).
The Parties do not dispute the hourly rates billed by the
Zobrist Law Firm.

The Hanover Companies object to the hours

expended by the Zobrist Law firm on a number of grounds.
B.

Reasonable Hours Expended

Counsel must exercise proper billing judgment and exclude
hours that are “excessive, redundant, or otherwise unnecessary.”
Hensley, 461 U.S. at 434.

The fee applicant bears the burden of

documenting the appropriate hours expended in the litigation and

10

must submit evidence in support of those hours worked.

Id. at

437; see Gates v. Deukejian, 987 F.2d 1392, 1397-98 (9th Cir.
1992).
A party opposing a fee application must submit objections
and proof that are specific and reasonably precise in order to
explain with particularity the hours that it views as excessive,
redundant, or otherwise unnecessary.

Scelta v. Delicatessen

Support Servs., Inc., 203 F.Supp.2d 1328, 1332 (M.D. Fla. 2002);
see Gates, 987 F.2d at 1397-98.
The Hanover Companies have made twelve categories of
objections to the hours billed by the Zobrist Law Firm.

The

twelve categories are:
(1)

Block Billing;

(2)

Inadequate or Vague Description of Services;

(3)

Rate Deviation;

(4)

In-Firm Conferences;

(5)

Multiple Attendance;

(6)

Clerical, Secretarial, or Administrative Services;

(7)

Travel Time;

(8)

Messenger, Delivery, Express, Overnight Mail Services;

(9)

Computer Assisted Research Or Access Charges;

(10) Undocumented External Expenses;
(11) Excessive Time; and,
(12) Time Not Related To Defense Of The Case.

11

(Pla.’s Accounting at pp. 15-16, ECF No. 190).
The Hanover Companies did not pay for the Zobrist Law Firm’s
billed attorneys’ fees in the following amounts based on the
twelve categories of objections:

REASON FOR OBJECTION

AMOUNT NOT PAID BY HANOVER

1.

Block Billing

$219,711.50

2.

Inadequate/Vague Descript.

$ 16,445.72

3.

Rate Deviation

$

4.

In-Firm Conferences

$ 16,400.50

5.

Multiple Attendance

$

120.00

6.

Clerical Services

$

4,216.25

7.

Travel Time

$

182.00

8.

Delivery Services

$

116.49

9.

Computer Research Fees

$

4,119.84

10.00

10. External Expenses

$ 61,989.96

11. Excessive Time

$ 43,387.50

12. Unrelated to Defense

$ 13,332.50

1.

Block Billing

The Hanover Companies first argue that many of the Zobrist
Law Firm’s billing entries include multiple distinct tasks within
the same time entry, a practice known as “block billing.”
The Hanover Companies provided the Zobrist Law Firm with its
Defense Counsel Guidelines that the Parties agreed would govern
the attorneys’ fees owed for tendering a defense in the
12

Underlying Lawsuit.

(Defense Counsel Guidelines attached as Ex.

B to Pla.’s Accounting, ECF No. 190-3).
The Defense Counsel Guidelines provided that “[u]nless
otherwise directed, the time for each activity should be
separately stated.

Grouping multiple activities under a single

time charge greater than one-tenth of an hour (“block billing”)
is not acceptable.”

(Id. at p. 10).

Courts frequently reduce hours that are block billed because
they are unable to discern the reasonableness of hours billed in
such a format.

Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948

(9th Cir. 2007).
District Courts have regularly reduced block billed entries
by twenty percent in order to fairly balance those hours that
were block billed between time spent on compensable and noncompensable tasks.

Signature Homes of Haw., LLC v. Cascade Sur.

and Bond, Inc., Civ. No. 06-00663 JMS-BMK, 2007 WL 2258725, at *3
(D. Haw. Aug. 3, 2007) (reducing block billed hours by twenty
percent); York v. Jordan, Civ. No. 13-00311 DKW-RLP, 2015 WL
728227, *3 (D. Haw. Jan. 30, 2015) (reducing block billed hours
by twenty percent).
The Hanover Companies object to paying $219,711.50 in
attorneys’ fees due to block billing.

(Pla.’s Accounting at p.

17, ECF No. 190).
Anova LLC acknowledges that a number of the entries

13

submitted by the Zobrist Law Firm are block billed.

On December

28, 2016, for the first time over a course of more than three
years of litigation, Anova LLC submitted a red-lined version of
the Zobrist Law Firm’s billing records.

The filing attempts to

edit the block billed tasks into separate entries.

(Red-Lined

Billing Entries, attached as Ex. 1 to Anova LLC’s Response filed
December 28, 2016, ECF No. 216-1).
Anova LLC submitted the Declaration of Duane Zobrist in
support of the red-lined billings.

(Zobrist Decl., ECF No. 216).

The Declaration of Duane Zobrist states that Attorney Scott
Dahlquist, who no longer works at the Zobrist Law Firm, made
redline edits to the firm’s block-billed entries sometime in
2014.

(Id. at ¶¶ 3, 4).

Duane Zobrist claims that a legal assistant named Lisa
Daidone told him that she submitted the red-lined billing records
created by Attorney Dahlquist to the Hanover Companies.
¶8).

(Id. at

Duane Zobrist alleges that Ms. Daidone told him that she

submitted the records to the Hanover Companies via its electronic
billing system in April 2014.

(Id. at ¶ 8).

Duane Zobrist

claims that neither he nor Anova LLC’s principal, Darren Zobrist,
were aware that the red-lined billing records existed at all
until December 2016.

(Id. at ¶¶ 7-8).

The Hanover Companies object to the red-line version of the
billing records submitted by Anova LLC.

14

The Hanover Companies

argue: (1) the red-lined billing records were not timely filed in
this case; (2) the records were never submitted to the Hanover
Companies before they were filed with the Court in 2016; and (3)
the submission of the evidence is based on hearsay.

(Hanover

Companies’ Reply at pp. 14-18, ECF No. 218).
The Court finds the Hanover Companies’ objections to be
credible.
First, Anova LLC’s disclosure of the red-lined billing
records is untimely.

Anova LLC never disclosed or submitted the

red-lined version of the billing records during almost three
years of litigation in this case.

The records were not submitted

with either of the Motions for Summary Judgment, in Anova LLC’s
Pretrial Statement, or in its Trial Brief that specifically
addressed the Zobrist Law Firm’s billing records and the amount
of reasonable attorneys’ fees.

(ECF Nos. 68, 69, 83, 103, 117,

130, 131, 160, 177).
Second, there is no evidence that the Hanover Companies
received the red-lined billing entries in 2014 as alleged by
Anova LLC.

There is no evidence of any e-mail communication

between the Parties regarding the “corrected” or “red-lined”
billing records and there is no evidence that the records were
submitted via its electronic billing system.
Reply at p. 17, ECF No. 218).

(Hanover Companies’

The Hanover Companies submitted

the Declaration of Joseph Dombrosky, who is the Legal Bill

15

Reviewer for Hanover.

(Dombrosky Decl., ECF No. 218-1).

Dombrosky states that the Hanover Companies never received the
red-lined records and that if the document was submitted to their
electronic system there would be a record of the submission.
(Id. at ¶¶ 6-9, ECF No. 218-1).
Third, the only evidence that the red-lined billing records
were created in 2014 and submitted to the Hanover Companies is
based on hearsay statements.
admissible.

The hearsay statements are not

Anova LLC did not submit a Declaration or Affidavit

from either Attorney Dahlquist or Assistant Lisa Daidone to
support its claims.
Fourth, the Hanover Companies’ Defense Counsel Guidelines
govern the attorneys’ fees owed in this case.

(Defense Counsel

Guidelines attached as Ex. B to Pla.’s Accounting, ECF No. 1903).

The Defense Counsel Guidelines provided that “Defense

counsel will send the final invoice to Hanover within thirty (30)
days after entry of final judgment or execution of the settlement
agreement/dismissals.”

(Id. at p. 9).

There is no admissible

evidence that the red-lined version of the billing entries were
provided to the Hanover Companies’ within thirty days of the
dismissal of the Underlying Lawsuit.
The Court will not consider Anova LLC’s late-filled,
“corrected” billing entries that are attached as Ex. 1 to Anova
LLC’s Response filed December 28, 2016, ECF No. 216-1.

16

The Court relies on the billing entries first filed with the
Court on March 16, 2016, attached as Exs. 5-9 to Anova LLC’s
Motion for Partial Summary Judgment, ECF No. 104-5—9.

(See also

the Hanover Companies’ Accounting, Ex. G, ECF Nos. 194-212).
A number of the block billing entries preclude any practical
review by the Court.

Some entries contain specific information

that document billable tasks.

Other entries would require

speculation in order to separate block billed entries into
billable and non-billable hours or to allocate certain hours to
specific tasks.
The lack of ability to differentiate the block billed hours
requires the Court to reduce the Zobrist Law Firm’s block billed
entries by twenty percent.

It is necessary because of the

deficiencies in the Zobrist Law Firm’s time records.

The twenty

percent reduction to the block billed entries fairly balances
those hours that were block billed to allocate the amount of
reasonable billable hours.

Booth v. Wong, Civ. No. 10-00680 DKW-

RLP, 2015 WL 4663994, *6-*7 (D. Haw. July 17, 2015) (citing
Painsolvers, Inc. v. State Farm Mut. Auto. Ins. Co., Civ. No. 0900429 ACK-KSC, 2012 WL 2529298, at *3 (D. Haw. June 28, 2012)
(reducing block billed time by twenty percent); see Lil’ Joe Wein
Music, Inc. v. Jackson, 2008 WL 2688117, *13 (S.D. Fla. July 1,
2008).
The twenty percent reduction results in $43,942.30 being

17

deducted from the $219,711.50 labeled as block billed attorneys’
fees.
The Hanover Companies owe an outstanding balance of
$175,769.20 as to the block billed entries.

2.

Inadequate or Vague Description of Services

The Hanover Companies did not pay $16,445.72 in attorneys’
fees based on their objection to the Zobrist Law Firm’s entries
they claimed included an inadequate or vague description of
services.
A review of the billing records demonstrates that the
Zobrist Law Firm’s entries were sufficiently detailed.

See

District of Hawaii Local Rule 54.3(d)(2).
For example, Attorney Craig Marshall billed for 2.32 hours
on November 14, 2012 for “Review email communications, finish
revisions to motion to stay.”
7).

(Pla.’s Ex. G, ECF No. 194-1 at p.

Attorney Scott Dahlquist billed for 1.80 hours on November

20, 2012 for “Analyze orders regarding claim construction.”
(Pla.’s Ex. G, ECF No. 195-1 at p. 11).

Such entries demonstrate

sufficient detail to allow the Court to evaluate the
reasonableness of the hours expended.

Hensley, 461 U.S. at 437.

The Hanover Companies have not demonstrated that a reduction
in fees is appropriate due to inadequate or vague billing
entries.

Gates, 987 F.2d at 1397-98.

18

The Hanover Companies owe an outstanding balance of
$16,445.72 as to the entries they claimed were vague or
inadequate.
3.

Rate Deviation

The Hanover Companies did not pay $10.00 in attorneys’ fees
for “rate deviation.”

The Hanover Companies have not identified

the basis for this reduction in their Memorandum.
Memorandum, ECF No. 190).

(Pla.’s

The Court is unable to identify the

basis for such a reduction.
The Hanover Companies owe an outstanding balance of
$10.00 as to “rate deviation.”

4.

In-Firm Conferences

The Hanover Companies refused to pay $16,400.50 due to
billing entries that they claimed were for “in-firm conferences.”
(Pla.’s Accounting at p. 17, ECF No. 190).
Anova LLC argues that the majority of the Hanover Companies’
objections to billing entries for “in-firm conferences” were for
communications between the Zobrist Law Firm and Anova LLC client
representative Darren Zobrist.

(Anova LLC Response at p. 14, ECF

No. 214).
The Hanover Companies admit that a portion of their
objections to the Zobrist Law Firm’s billing entries for inter19

firm conferences were erroneous.
218).

(Pla.’s Reply at p. 18, ECF No.

In their Reply, the Hanover Companies have withdrawn their

objections to $1,910.00 in billing entries due to in-firm
conferences.

(Id.)

The remaining billing entries that the Hanover Companies
objected to due to “in-firm conferences” are not recoverable.
The Hanover Companies Defense Counsel Guidelines are clear that
discussions about a file among the law firm’s own attorneys are
not billable.

(Defense Counsel Guidelines Section V.B.5, ECF No.

190-3 at p. 10).
The Hanover Companies owe an outstanding balance of
$1,910.00 as to the billing entries for in-firm conferences.

5.

Multiple Attendance

The Hanover Companies did not pay the Zobrist Law Firm for
$120.00 in fees due to multiple attendance by the Zobrist Law
Firm’s attorneys.

(Pla.’s Accounting at p. 17, ECF No. 190).

The Zobrist Law Firm is not entitled to fees for multiple
attendance at a meeting.

The Hanover Companies Defense Counsel

Guidelines provided that billing for multiple attendance is not
allowed.

“Counsel should consult with the claim adjuster where

it is anticipated that more than one timekeeper’s attendance is
necessary at trial, court appearances, meetings, depositions,
witness interviews, inspections and other functions.”

20

(Defense

Counsel Guidelines Section V.B.6, ECF No. 190-3 at p. 11).
Attorneys’ fees for multiple attendance are generally not
recoverable because two professionals cannot reasonably bill for
attending the same meeting, conference, or similar matter.
Robinson v. Plourde, 717 F.Supp.2d 1092, 1099 (D. Haw. 2010).
The Hanover Companies do not owe a balance as to the
outstanding billing entries for multiple attorney attendance.
6.

Clerical, Secretarial, or Administrative Activities

The Hanover Companies did not pay $4,216.25 in billing
entries because the fees requested constituted clerical,
secretarial, or administrative activities.
The Hanover Companies Defense Guidelines did not allow for
attorneys’ fees for clerical, secretarial, or administrative
activities.

(Defense Counsel Guidelines Section V.B.11, ECF No.

190-3 at p. 11).
Clerical costs are part of an attorney’s overhead and are
reflected in the charged hourly rate and are not billable
separately.

Jeremiah B. v. Dep’t of Educ., Civ. No. 09-00262DAE-

LK, 2010 WL 346454, at *5 (D. Haw. Jan. 29, 2010).
The Hanover Companies do not owe a balance as to the
outstanding billing entries for clerical, administrative, or
secretarial tasks.

21

7.

Travel Time

The Hanover Companies did not pay $182.00 in billing entries
for travel time.

The Hanover Companies stated that it paid half

of the Zobrist Law Firm’s travel time billings pursuant the terms
of their billing guidelines.

(Defense Counsel Guidelines Section

V.B.11, ECF No. 190-3 at p. 11).
The terms of the Hanover Companies’ billing guidelines were
reasonable and provided sufficient fees for travel time.

See Ko

Olina Development, LLC v. Centex Homes, Civ. No. 09-00272 DAE-LK,
2011 WL 1235548, *13 (D. Haw. March 29, 2011).
The Hanover Companies do not owe a balance as to the
outstanding billing entries for travel time.
8.

Messenger, Delivery, Express, Overnight Mail Services

The Hanover Companies did not pay $116.49 in billing entries
for messenger, delivery, express, or overnight mail services.
Delivery costs are generally recoverable for out-of-pocket
litigation expenses.

Grove v. Wells Fargo Fin. Ca., Inc., 606

F.3d 577, 580 (9th Cir. 2010).
The Hanover Companies dispute the billing entries on the
basis that its billing guidelines allow for recovery of such
delivery fees only when “its use is necessary to the defense of
the case.”

(Defense Counsel Guidelines Section V.C.6, ECF No.

190-3 at p. 12).
22

The delivery services were reasonably related to the defense
of the case and the Hanover Companies are responsible for the
cost.
The Hanover Companies owe an outstanding balance of $116.49
as to the billing for delivery services.
9.

Computer Assisted Research or Access Charges

The Hanover Companies did not pay $4,119.84 in fees for
computer assisted research or access charges.
The Hanover Companies’ billing guidelines contained a
provision stating that “Hanover will not pay for Internet access
charges, monthly online docket access or subscription charges, or
charges for computer assisted research such as Westlaw, Lexis,
and other computer research databases.

These services are

considered part of the firm’s overhead.”

(Defense Counsel

Guidelines Section V.C.6, ECF No. 190-3 at p. 12).
The Hanover Companies do not owe a balance as to the
outstanding billing entries for computer assisted research.
10.

Undocumented External Expenses

The Hanover Companies declined to pay $61,989.96 in fees for
undocumented expenses for outside counsel.

The billing entries

submitted for these fees do not provide any information other
than vague descriptions such as, “Outside Counsel,” or similarly
23

insufficient descriptions.

In addition, the billing entries are

requests for large flat fees with no hourly information.
For example, on November 14, 2012, the Zobrist Law Firm
billed $3,755.00 for “outside counsel.”
194-1 at p. 7).

(Pla.’s Ex. G, ECF No.

On January 9, 2013, the Zobrist Law Firm billed

$15,488.80 for “outside counsel.”

(Pla.’s Ex. G, ECF No. 196-1

at p. 12).
There is no information that would allow the Court to
evaluate if such billing entries are reasonable.

Hensley, 461

U.S. at 437.
The Hanover Companies do not owe a balance as to the
outstanding billing entries for external expenses.
11.

Excessive Time

The Hanover Companies did not pay $43,387.50 of billing
entries due to excessive time.
A party opposing a fee request that it deems to be excessive
must submit objections and proof that are specific and reasonably
precise in order to explain its objection.

Scelta, 203 F.Supp.2d

at 1332; see Gates, 987 F.2d at 1397-98.
The Hanover Companies have not provided specific and
reasonably precise objections to billing entries that they deemed
“excessive.”

A review of the billing entries that the Hanover

Companies identified as excessive does not demonstrate that a

24

reduction is warranted.

The nature of the Underlying Lawsuit and

the extensive proceedings in the litigation support a ruling that
the time requested was reasonable.
The Hanover Companies owe an outstanding balance of
$43,387.50 as to the billing entries marked as “excessive time.”

12.

Time Not Related to Defense

The Hanover Companies did not pay $13,332.50 in billing
entries that were related to the Underlying Lawsuit but they
deemed were not part of Anova LLC’s defense.
The Court already ruled that the Hanover Companies had a
duty to defend Anova LLC for the entire suit and they were not
able to apportion the attorneys’ fees based on the nature of the
claims brought in the Underlying Lawsuit, citing Grissom v.
Commercial Union Ins. Co., 610 So.2d 1299, 1307 (Fla. Dist. Ct.
App. 1992); (Order dated June 29, 2016, at p. 47, ECF No. 151).
A proper defense may include counterclaims for which
reasonable attorneys’ fees are recoverable where there is a duty
to defend.

See KLA-Tencor Corp. v. Travelers Indem. Co., 2004 WL

1737297, *4, *10 (N.D. Cal. Aug. 4, 2004).
The Hanover Companies owe an outstanding balance of
$13,332.50 for the billing entries marked as “time not related to
defense.”
In total, the Court finds that as to the outstanding

25

attorneys’ fees that remain in dispute the Hanover Companies owe
the following:

TOTAL OUTSTANDING FEES IN DISPUTE

$

352,121.46

REASON FOR OBJECTION

AMOUNT IN DISPUTE

AMOUNT OWED

1. Block Billing

$219,711.50

$ 175,769.20

2. Inadequate/Vague

$ 16,445.72

$

16,455.72

3. Rate Deviation

$

10.00

$

10.00

4. In-Firm Conf.

$ 16,400.50

$

1,910.00

5. Multi. Attendance

$

120.00

$

0.00

6. Clerical

$

4,216.25

$

0.00

7. Travel Time

$

182.00

$

0.00

8. Delivery Services

$

116.49

$

116.49

9. Computer Fees

$

4,119.84

$

0.00

10. External Expense

$ 61,989.96

$

0.00

11. Excessive Time

$ 43,387.50

$

43,387.50

12. Unrelated to Def

$ 13,332.50

$

13,332.50

$ 250,971.41

The Hanover Companies owe a total of $250,971.41 in
additional attorneys’ fees incurred from October 12, 2012 to
December 10, 2013.

26

CONCLUSION

The Court FINDS that the Hanover Companies owe an additional
$250,971.41 in attorneys’ fees for the defense of Anova Food, LLC
in the Underlying Lawsuit.
There are no remaining issues before the Court.
The Clerk of Court is DIRECTED to enter judgment and CLOSE
THE CASE.

IT IS SO ORDERED.
DATED: June 9, 2017, Honolulu, Hawaii.

The Hanover Insurance Company; Massachusetts Bay Insurance
Company v. Anova Food, LLC; Counterclaimant Anova Food, LLC v.
Counter-Defendants The Hanover Insurance Company; Massachusetts
Bay Insurance Company; Civ. No. 14-00281HG-RLP; ORDER AWARDING
ATTORNEYS’ FEES INCURRED IN DEFENSE OF ANOVA FOOD, LLC
27