Metropolitan Casualty Insurance Company v. Goriola

Filing 64

ORDER granting in part and denying in part 55 Motion for Attorney Fees and Expenses; denying 56 Motion to Seal Document; granting 60 Motion Request for Adversary Submission on Motion for Fees. See order for details. Signed by Chief Judge David R. Herndon on 07/21/2014. (kbl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
METROPOLITAN CASUALTY
INSRUANCE COMPANY,
Plaintiff/Counterclaim-Defendant,
vs.

No.

3:11-cv-00745-DRH-DGW

GEORGIA GORIOLA,
Defendant/Counterclaim-Plaintiff.
MEMORANDUM AND ORDER
HERNDON, Chief Judge:
Before the Court is plaintiff and counterclaim-defendant Metropolitan
Casualty Insurance’s (“Metropolitan”) motion for reasonable attorneys’ fees and
expenses (Doc. 55).
(“Goriola”)

Defendant and counterclaim-plaintiff Georgia Goriola

subsequently

filed

a

request

for

adversary

submissions

on

Metropolitan’s motion for reasonable attorneys’ fees and expenses (Doc. 60). The
Court GRANTS the motion and will therefore consider Goriola’s response (Doc.
61). Metropolitan thereafter replied (Doc. 63). For the following reasons, the
Court GRANTS in part and DENIES in part Metropolitan’s motion for reasonable
attorneys’ fees and expenses.
I.

Background

Metropolitan brought this declaratory judgment action pursuant to 28 U.S.C.
§§ 2201 and 2202, against Goriola seeking declaration by this Court that it does not

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owe a duty to indemnify Goriola pursuant to a homeowner’s insurance policy
issued to Goriola by Metropolitan. Metropolitan further sought recovery of any
advance payments, the amount paid to the mortgage holder, if any, and the amount
of expenses incurred in investigation, adjustment, and evaluation of the claim
including attorney’s fees.

On December 11, 2013, the Court granted

Metropolitan’s motion for summary judgment and closed the case.
Metropolitan seeks recovery of its attorney’s fees and expenses incurred in
the investigation, adjustment, evaluation and litigation of this claim, including
amounts advanced to Goriola.

Metropolitan indicates that it provided Goriola

with advance payments totaling $9,000 ($5,000 on September 27, 2010, $2,000 on
November 1, 2010, and $2,000 on November 15, 2010). Metropolitan also states
that it advanced expenses to Goriola totaling $12,213.58 to fund her extended stay
at the Comfort Inn in Cahokia, Illinois, an additional $19,328.45 for cleaning and
storing various content items belonging to Goriola, and $5,537.28 to board-up
Goriola’s dwelling and to make emergency repairs to the same.

Metropolitan

additionally requests reasonable attorneys’ fees totaling $58,501. In support of
these totals, Metropolitan provides the affidavit of Debra-Lynn Benvenuto, Senior
Claim Adjuster for Metropolitan (Doc. 55-1 at 1-4), relevant invoices (Doc. 55-1 at
5-50), and the affidavit of Robert W. Cockerham, counsel of record for
Metropolitan.

Metropolitan then moved for leave to file under seal its billing

records as Exhibit C (Doc. 56).

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In her response, Goriola asserts that Metropolitan’s motion should be denied
because it is untimely, provides no authority for the imposition of attorneys’ fees
against Goriola, and because it requests additional relief without providing Goriola
with reasonable notice of the claim and an opportunity to be heard.
Metropolitan subsequently replied (Doc. 63). Metropolitan asserts that the
motion was in fact timely as it was filed to resolve Metropolitan’s remaining claim
and therefore Federal Rule of Civil Procedure 54 does not apply. Metropolitan also
argues that its motion contains authority supporting the recovery of attorneys’ fees
and specifically notes its citations regarding Illinois precedent on rescission.
Finally, Metropolitan asserts that its motion seeks the precise relief it sought when
this suit was filed.
II.
A.

Analysis

Advances
Metropolitan requests recoupment of the advance payments it made to

Goriola. Under Illinois law, “[t]he remedy of rescission generally requires each
party to return to the other the value of the benefits received under the rescinded
contract.”

Newton v. Aitken, 633 N.E.2d 213, 216 (2nd Dist. 1994).

On

December 11, 2013, this Court concluded that the insurance policy at issue would
be rescinded due to Goriola’s material misrepresentations.

Accordingly,

Metropolitan is entitled to the advances and Goriola to her insurance premiums.
However, Goriola fails to address the premiums in her response, instead relying on

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28 U.S.C. § 2202’s notice and hearing requirement. Further, she states, “ [a]t a
minimum, if Metropolitan wishes to recover its advances on the basis of rescission,
Ms. Goriola must be provided with an opportunity to determine premiums paid to
Metropolitan for the policy, and the fourteen (14) days Ms. Goriola has to respond
to Metropolitan’s Motion is insufficient to explore that issue” (Doc. 61 at 3). The
Court disagrees — this was Goriola’s opportunity to address the issue. If Goriola
needed more time to review her premiums, then she should have requested an
extension of time. Furthermore, while the parties did not address this issue at the
Summary Judgment stage of the litigation, Metropolitan’s complaint clearly
indicates a request for these advance payments (Doc. 2 at 7). Therefore, the Court
finds that Goriola has waived the argument.

Goriola also does not object to

Metropolitan’s statements regarding the amount of the advances. As such, the
Court finds that Metropolitan is entitled to recoup its advances to Goriola totaling
$46,079.31.
B.

Attorneys’ Fees
Metropolitan also seeks to recover its attorneys’ fees. Pursuant to Federal

Rule of Civil Procedure 54(d)(2)(B)(i), a motion for attorneys’ fees must “be filed no
later than 14 days after the entry of judgment.” Judgment in this case was entered
on December 16, 2013 (Doc. 54). However, Metropolitan’s motion for attorney
fees and expenses was not filed until January 8, 2014, outside the 14-day window.
The Court finds unpersuasive Metropolitan’s argument that its request for

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attorneys’ fees is a separate claim. While Metropolitan did indicate the request in
the complaint, the procedures of Rule 54 still apply. Therefore, the Court DENIES
Metropolitan’s request for attorneys’ fees.

Further, the Court need not review

Metropolitan’s billing statements, therefore the Court also DENIES Metropolitan’s
motion to seal document (Doc. 56).
III.

Conclusion

Accordingly, the Court GRANTS in part and DENIES in part Metropolitan’s
motion for attorney fees and expenses (Doc. 55). The Court GRANTS Goriola’s
request for adversary submissions (Doc. 60) and DENIES Metropolitan’s motion to
seal document (Doc. 56).
IT IS SO ORDERED.
Signed this 21st day of July, 2014.

Digitally signed by
David R. Herndon
Date: 2014.07.21
14:51:08 -05'00'
Chief Judge
United States District Court

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