ISOVOLTA INC. v. PROTRANS INTERNATIONAL, INC.

Filing 326

ORDER on Isovolta's 308 Motion for Attorney Fees and Costs - The Court GRANTS IN PART Isovolta's Motion for Fees and Costs, dkt. 308 , and ORDERS ProTrans to pay Isovolta $235,646.01 in attorney's fees and $24,350.98 in costs. These amounts will be included in the Final Judgment issued this date. (SEE ORDER). Signed by Judge Jane Magnus-Stinson on 9/14/2011. (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ISOVOLTA INC.,
Plaintiff,

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)
)
)
)
)
)
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vs.
PROTRANS INT’L, INC.,
Defendant.

1:08-cv-1319-JMS-DML

ORDER ON ISOVOLTA’S MOTION FOR ATTORNEY FEES AND COSTS
Presently pending before the Court is Plaintiff Isovolta Inc.’s (“Isovolta”) Motion for Attorney Fees and Costs. [Dkt. 308.] A jury awarded Isovolta $6,500 on a breach of contract
claim against Defendant ProTrans International, Inc. (“ProTrans”).

Isovolta now requests

$348,796.58 in attorney’s fees, $61,605.58 in costs,1 and $15,000 in anticipated attorney’s fees
pursuant to the fee-shifting provision in its contract with ProTrans.
I.
BACKGROUND
Isovolta paid ProTrans for both the right to store goods in a Texas warehouse that ProTrans leased from a non-party and for related storage services. In March 2008, one of the warehouse’s emergency sprinklers activated in the absence of fire, dousing Isovolta’s goods with water and damaging them. In the weeks that followed the incident, two other sprinklers malfunctioned in areas without any Isovolta goods.
A written contract (the “Services Agreement”) governs the relationship between Isovolta
and ProTrans and provides, in relevant part, that ProTrans “‘shall not be liable for any loss or

1

The costs Isovolta requests in this motion are separate from the Bill of Costs it submitted pursuant to Federal Rule of Civil Procedure 54(d). [Dkt. 307.] That request will be addressed in a
separate order.
-1-

injury to goods however caused unless such loss or injury results from the negligence or willful
misconduct of ProTrans or its agents or employees.’” [Dkt. 79 at 4 (quoting dkt. 34-1 at 5).]
The Services Agreement also contains a fee-shifting provision providing that “[Isovolta] and
ProTrans agree to pay the prevailing parties’ reasonable costs, including attorney fees, incurred
by such party in enforcing this Agreement.” [Dkt. 34-1 at 6.]
Isovolta submitted a proof of loss to ProTrans for $104,356.06 in April 2008. When that
was not paid, Isovolta filed a Complaint against ProTrans for breach of contract and negligence
in October 2008. [Dkt. 1.] ProTrans’ Answer to Isovolta’s Complaint asserted various affirmative defenses, including that Isovolta’s damages were caused by the negligent actions or omissions of non-parties Firecheck of Texas (“Firecheck”), Tyco International, Ltd., and/or SimplexGrinnell, LLC. [Dkt. 29 at 6.]
In May 2009, Isovolta filed an Amended Complaint against ProTrans that withdrew the
negligence cause of action but maintained the breach of contract cause of action. [Dkt. 41.]
ProTrans reasserted the same non-party affirmative defenses in response to Isovolta’s Amended
Complaint. [Dkt. 50 at 5.]
On October 12, 2009, Isovolta moved to amend its complaint a second time, to which
ProTrans did not object. [Dkts. 80; 84.] Isovolta’s Second Amended Complaint asserted a
breach of contract claim against ProTrans, product liability and negligence claims against Tyco
Fire Products LP (“Tyco”), and a negligence claim against Firecheck. [Dkt. 85.] Discovery ensued, and almost one year later, Isovolta settled with Firecheck, and Firecheck was dismissed
from the case. [Dkt. 171.] The remaining parties—Isovolta, ProTrans, and Tyco—filed a total
of five summary judgment motions resulting in four opinions from this Court. [Dkts. 203; 204;
205; and 217.] The Court denied Isovolta and ProTrans’ requests for summary judgment, find-

-2-

ing that issues of material fact remained to be decided by a jury. [Dkts. 203; 204.] The Court
granted summary judgment in favor of Tyco on Isovolta’s claims against it. [Dkt. 217.]
The Court held a jury trial on Isovolta’s breach of contract claim against ProTrans in May
2011. [Dkts. 293; 295; 296; and 299.] Isovolta asked the jury to award it approximately
$130,000 in closing argument. The jury found in favor of Isovolta and awarded it $6,500 in
damages. [Dkt. 301.] The parties agreed after the trial that the Court should address Isovolta’s
anticipated fee requested before the entry of final judgment. [Dkt. 308 at 4.]
Isovolta now requests attorney’s fees and costs pursuant to the fee-shifting provision in
its contract with ProTrans. Specifically, Isovolta requests that the Court award it $348,796.58 in
attorney’s fees that Isovolta has already paid, $61,605.58 in costs, and $15,000 in attorney’s fees
it anticipates incurring. [Dkt. 308 at 1.]
II.
STANDARD OF REVIEW
This Court has diversity jurisdiction over this matter. In diversity cases, state law governs the grant of attorney’s fees. Jackman v. WMAC Inv. Corp., 809 F.2d 377, 383 (7th Cir.
1987). The parties agree that Indiana law applies here.
It is well-established in Indiana that parties are permitted to enter into agreements containing a fee-shifting provision as long as the provision does not violate public policy. Walton v.
Claybridge Homeowners Ass’n, Inc., 825 N.E.2d 818, 824-25 (Ind. Ct. App. 2005). The purpose
of such a provision is “to make the prevailing party to a contract whole.” Id. at 825. If a feeshifting provision limits recovery of fees to certain claims, however, the district court must limit
the fee award accordingly. Digitech Computer, Inc. v. Trans-Care, Inc., 646 F.3d 413 (7th Cir.
2011) (applying Indiana law in diversity action and concluding that district court “correctly limited Digitech’s award of attorneys’ fees to those relating to the breach of contract action, ex-3-

cluding Digitech’s attorneys’ fees relating to Trans-Care’s fraud counterclaims”); see also Burras v. Canal Construction & Design Co., 470 N.E.2d 1362, 1370 (Ind. Ct. App. 1984) (limiting
an award of attorney’s fees to the terms expressly provided in the contract). Under Indiana law,
a court abuses its discretion if it reduces an otherwise reasonable fee request based on the amount
of the judgment. Gerstbauer v. Styers, 898 N.E.2d 369, 380 (Ind. Ct. App. 2008) (citation omitted).
As Isovolta points out, [dkt. 308 at 13], the United States Supreme Court recently emphasized that the determination of fees “should not result in a second major litigation.” Fox v. Vice,
131 S. Ct. 2205, 2216 (2011). While it is the fee applicant’s burden to submit appropriate documentation to meet the burden of establishing entitlement to an award, the Court “need not, and
indeed should not, become green-eyeshade accountants.” Id. Instead, the essential goal in shifting fees to either party is to do “rough justice, not to achieve auditing perfection[;]” the Court
may take into account its “overall sense of the suit, and may use estimates in calculating and allocating an attorney’s time.” Id.
III.
DISCUSSION
The parties’ agreement will control the Court’s determination of the instant motion. It
provides: “[Isovolta] and ProTrans agree to pay the prevailing parties’ reasonable costs, including attorney fees, incurred by such party in enforcing this Agreement.” There are three issues
raised by the contract terms: whether Isovolta is the prevailing party, whether the requested fees
were incurred in enforcing the parties’ agreement, and whether the requested fees are reasonable.
The Court will address each of those issues.

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A. Prevailing Party
Isovolta and ProTrans dispute whether Isovolta was the prevailing party. The parties’
contract does not define the term “prevailing party.” Isovolta argues that it is the prevailing party for purposes of the contractual fee-shifting provision because the jury entered judgment in its
favor. [Dkt. 308 at 8.] While ProTrans does not dispute that the jury entered judgment in favor
of Isovolta, it contends that Isovolta is not the prevailing party because it only recovered 5% of
the damages it sought. [Dkt. 321 at 3.] Therefore, ProTrans asks the Court to deny Isovolta’s
fee petition in its entirety “in recognition of the fact that there are no winners in this case and that
any award of fees or costs to Isovolta would therefore be unreasonable.” [Dkt. 321 at 2.]
The parties dispute the applicability of the Indiana Supreme Court’s definition of “prevailing party” in Reuille v. E.E. Brandenberger Construction, Inc. 888 N.E.2d 770 (Ind. 2008).
In Reuille, the Indiana Supreme Court held that a party who settled a claim by mediation did not
prevail for purposes of a contractual fee-shifting provision. In support of that conclusion, Reuille
quoted the definition of “prevailing party” from the edition of Black’s Law Dictionary in effect
at the time the parties therein executed the contract:
“The party to a suit who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not necessarily to the
extent of his original contention. The one in whose favor the decision or verdict is
rendered and judgment entered.”
Id. (quoting Black’s Law Dictionary 1188 (6th ed. 1990)). Reuille emphasizes that the cited definition “appears to contemplate a trial on the merits and entry of a favorable judgment in order
to obtain prevailing party status” and that one of the purposes of mediation “is to provide an atmosphere in which neither party feels that he or she has ‘lost’ or ‘won’ a case.” 888 N.E.2d at
771-72.

-5-

ProTrans argues that Reuille did not decide whether a party that receives much less than
it requested after a jury trial is the “prevailing party” and that this “remains an open question in
Indiana.”2 [Dkt. 321 at 5.] The Court rejects ProTrans’ argument. The Indiana Supreme Court
expressly stated that the cited definition contemplated a trial on the merits and a judgment in favor of the movant. It is undisputed that a trial on the merits occurred in this case, and ProTrans
does not dispute that the jury entered its verdict in favor of Isovolta. [See dkt. 301 (signed “Verdict for Plaintiff” form, finding “in favor of the Plaintiff, Isovolta, Inc., and against the Defendant ProTrans International, Inc.”).] Therefore, based on the Indiana Supreme Court’s rationale
in Reuille, Isovolta is the prevailing party.
The definition of the term “prevailing party” in the edition of Black’s Law Dictionary in
effect at the time ProTrans and Isovolta executed the Services Agreement bolsters this Court’s
conclusion.3 It defines a “prevailing party” as “[a] party in whose favor a judgment is rendered,
regardless of the amount of damages awarded.” Black’s Law Dictionary 1154 (8th ed. 2004).
Again, it is undisputed that the jury rendered a judgment in favor of Isovolta, and the applicable
definition disregards the amount of damages awarded.
For these reasons, the Court concludes that Isovolta is the prevailing party for purposes of
the fee-shifting provision in the parties’ contract. Therefore, the Court rejects ProTrans’ request
to outright deny Isovolta’s fee petition because the jury awarded Isovolta less than what it requested.
2

ProTrans refers to Isovolta’s damages award as a “nominal award.” [Dkt. 321 at 5.] Although
Isovolta was not awarded the amount it requested, the damages the jury awarded it were not nominal and the jury undoubtedly entered judgment in favor of Isovolta. [Dkt. 301 (jury verdict in
favor of Isovolta).]
3

The eighth edition of Black’s Law Dictionary was published in 2004 and the ninth edition was
published in 2009; therefore, the eighth edition was in effect at the time Isovolta and ProTrans
executed the Services Agreement in 2006.
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B. Limitation on Recovery in Fee-Shifting Provision
1. Fees Incurred in Enforcing the Agreement
Isovolta and ProTrans dispute the amount of fees Isovolta can recover pursuant to the feeshifting provision of the parties’ contract. The parties’ contract limits the prevailing party’s recovery to “reasonable costs, including attorney fees, incurred by such party in enforcing this
Agreement.” [Dkt. 34-1 at 6 (emphasis added).] ProTrans argues that this language prevents
Isovolta’s recovery of fees or costs incurred pursuing claims against Firecheck or Tyco because
those claims were not pursued to enforce Isovolta’s agreement with ProTrans.
Isovolta does not argue that the limitation in the fee-shifting provision is ambiguous or
that it entitles Isovolta to recover all fees and costs incurred in this litigation. In fact, Isovolta
concedes that fees it incurred related to discovery on the issue of lost profits must be excluded
because “Isovolta’s sole purpose in obtaining that discovery was in support of a lost profits remedy from parties other than ProTrans.” [Dkts. 309 at 1 ¶ 2(b); 309-1 at 4 (Isovolta’s “Excluded
Attorney Fees” totaling $9,207.32).] Aside from this concession, however, Isovolta requests
reimbursement for the remainder of the expenses it incurred pursuing its claims against Firecheck and Tyco, arguing that ProTrans asserted affirmative defenses implicating those parties
and bringing them into the litigation.
Whether a party is entitled to attorney’s fees and costs under a contractual fee-shifting
provision is a question of law for the Court. Cintas Corp. v. Perry, 517 F.3d 459, 468 (7th Cir.
2008). If a contract is clear and unambiguous, the language therein must be given its plain
meaning. Wagner v. Yates, 912 N.E.2d 805, 810 (Ind. 2009). Courts should interpret a contract
so as to harmonize its provisions rather than to place them in conflict. Dunn v. Meridian Mut.
Ins. Co., 836 N.E.2d 249, 252 (Ind. 2005). If a fee-shifting provision limits recovery of fees to

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certain claims, the district court must limit the fee award accordingly. Digitech Computer, Inc.,
646 F.3d at 413; see also Burras, 470 N.E.2d at 1370.
Isovolta correctly points out that ProTrans asserted affirmative defenses against Firecheck and Tyco, which brought issues regarding those parties into the litigation. [Dkt. 308 at
11.] What Isovolta fails to acknowledge, however, is that when it moved to amend its complaint
to assert claims for negligence and products liability against Firecheck and Tyco, Isovolta undertook a burden to prove its claims against those parties. Its claims were, thus, independent of
ProTrans’ affirmative defenses regarding those parties because pursuit of those claims was not to
enforce its contract with ProTrans, it was to seek recovery from other parties.4 [Dkt. 80 (“Isovolta’s Motion for Leave to File Second Amended Complaint Adding Direct Claims Against Firecheck of Texas, Inc. and Tyco Fire Products LP”) (filed October 12, 2009).] Therefore, the
Court agrees with ProTrans that Isovolta cannot recover attorney’s fees or costs incurred pursuing its independent claims against Tyco and Firecheck because it was not “enforcing” its contract with ProTrans by pursuing those claims.
2. Determining Amount Isovolta Can Recover Enforcing Contract Against
ProTrans
The Court must then determine how best to exclude the fees and expenses Isovolta incurred pursuing its claims against Firecheck and Tyco from Isovolta’s fee request. ProTrans
proposes an apportionment and exclusion method. Isovolta challenges the concept, but not the

4

In addition to the limitation in the fee-shifting provision, the Services Agreement expressly
provides that ProTrans “shall not be liable for any loss or injury to goods however caused unless
such loss or injury results from the negligence or willful misconduct of ProTrans or its agents or
employees.” [Dkt. 34-1 at 5.] Interpreting the contract to harmonize those provisions instead of
place them in conflict, it is clear that the parties intended for the contract to only govern the relationship, liability, and recovery between ProTrans and Isovolta. Firecheck and Tyco were not
parties to that contract, and Isovolta’s independent pursuit of claims against those parties was not
done to enforce the contract.
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amount, of apportionment that ProTrans has proposed. Isovolta does not propose an alternative
method, other than awarding it the full amount of its request.
a. ProTrans’ Proposed Methodology
As ProTrans points out, most of Isovolta’s counsel’s time entries for the periods when
there were multiple parties in the case are block billed, which makes it difficult (if not impossible) to distinguish tasks that were related to Isovolta enforcing the contract against ProTrans
from tasks that were related to Isovolta’s independent claims against Firecheck and Tyco.
Therefore, ProTrans proposes various time periods based on the number of defendants involved
in the case and asks the Court to only hold ProTrans responsible for a portion of the fees Isovolta
incurred based on the number of defendants involved during the corresponding time period:5
ProTrans’ Proposed Apportionment of Fees and Costs

1
2
3
4

Time Period
Time Period
Starts
Ends
October 1, 2008
September 28, 2009
(Complaint filed)
September 23, 2010
September 29,
(Firecheck dis20096
missed)
September 24,
February 14, 2011
2010
(Tyco dismissed)
February 15,
June 14, 2011 (last
2011
billing entry)

Defendants in
Litigation

ProTrans’ Proposed
Portion of Fees

ProTrans

100%

ProTrans, Firecheck, &
Tyco

33.3%

ProTrans & Tyco

50%

ProTrans

100%

5

Although ProTrans only proposes the second and third time period detailed in the chart, [dkt.
321-1 at 2-3], it does not challenge either the fees Isovolta incurred before Isovolta moved to
amend its complaint to assert independent claims against Firecheck and Tyco or the fees Isovolta
incurred after Tyco was dismissed from the case on February 14, 2011. [Dkt. 321-1 at 2 (“ProTrans does not contest time entries not highlighted.”).] Therefore, ProTrans implicitly proposes
four time periods for which to apportion fees and acknowledges that it is responsible for 100% of
the fees Isovolta incurred during the first and fourth time periods.

6

ProTrans starts the second time period on September 29, 2009, noting that date was “days before Isovolta filed its motion for leave to file a second amended complaint.” [Dkt. 321-1 at 2.] It
is unclear why ProTrans starts the time period that day instead of on October 12, 2009—the date
on which Isovolta actually moved for leave to file its second amended complaint. [Dkt. 80.]
-9-

ProTrans also conducts a thorough review of the time entries from periods where there
were multiple defendants and highlighted the entries where it is clear that the fees or costs were
incurred exclusively for Isovolta’s pursuit of its claims against Firecheck or Tyco. [Dkts. 321-3
to 321-8.] ProTrans contends that in addition to the fee apportionment detailed in the chart, it
should not be responsible for any of the identified fees that relate exclusively to Firecheck or Tyco. [See, e.g., dkt. 321-4 at 3 (blue highlighting on product liability research and Tyco summary
judgment preparation).]
ProTrans proposes the same apportionment and reduction methodology for the costs Isovolta seeks. [Dkt. 321-1 at 3-4.] Based on its proposal, ProTrans asks the Court to reduce Isovolta’s fee request by $114,259.14 and its expense request by $37,257.10.
b. Isovolta’s Response to ProTrans’ Proposed Methodology
In its reply, Isovolta argues that by conceding fractional liability for each of the block
billed entries, ProTrans concedes that all of the tasks were reasonable and necessary to enforce
the parties’ agreement. [Dkt. 323 at 5, 7.] Therefore, Isovolta reasserts that ProTrans is liable
for all of Isovolta’s fees and expenses, including those that Isovolta incurred pursuing its claims
against Firecheck and Tyco.
Other than awarding it the full amount of its request, Isovolta does not propose an alternative method for calculating the amount of fees it incurred enforcing the contract against ProTrans. Isovolta does not specifically challenge the classification of any of the entries ProTrans
highlighted, ProTrans’ mathematical calculation regarding the total amount of fees it proposes to
exclude, or the equal distribution of the fees between the number of remaining defendants in the
case (i.e., 33.3%, 50%, or 100% based on the number of defendants).

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c. Proper Amount of Apportionment Deduction
The Court has already concluded that Isovolta is entitled to reasonable attorney’s fees and
costs incurred enforcing the contract with ProTrans but that it cannot recover attorney’s fees or
costs incurred pursuing independent claims against Firecheck or Tyco. Isovolta’s contention that
it is entitled to full compensation because ProTrans has conceded a portion of the block-billed
fees does not comply with Indiana law, which requires the Court to limit a fee award according
to the contractual language of the fee-shifting provision. See Digitech Computer, Inc., 646 F.3d
at 413 (applying Indiana law in diversity suit to hold that if a fee-shifting provision limits recovery of fees to certain claims, the district court must limit the fee award accordingly). It is beyond
dispute that some of the fees Isovolta included in its fee petition against ProTrans (e.g., its unsuccessful summary judgment motion against Tyco) were incurred solely for Isovolta’s pursuit
of those parties and, thus, are not recoverable. Therefore, the Court rejects Isovolta’s argument
that it is entitled to a full recovery of fees because ProTrans conceded limited liability for a portion of the requested fees.
Because Isovolta chose to block bill its time, it is not possible for the Court to determine
the exact amount Isovolta incurred enforcing the contract or to exclude the exact amount Isovolta
incurred pursuing its claims against Firecheck and Tyco. But, for two reasons, this does not
preclude Isovolta from recovering a portion of the block-billed fees. First, ProTrans concedes7
that it is liable for at least one-third of the block-billed fees Isovolta incurred when Firecheck and
Tyco were its co-defendants and at least one-half of the fees Isovolta incurred when Tyco was its
co-defendant. [Dkt. 321-1 at 2-3.] Second, as detailed previously, the United States Supreme

7

The Court acknowledges that ProTrans’ concession is an alternative argument to its main assertion that Isovolta was not a prevailing party, but because the Court has rejected that assertion, its
concession stands.
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Court recently emphasized that the Court should focus on doing “rough justice” not on achieving
auditing perfection. Fox, 131 S.Ct. at 2216. Therefore, the fact that the Court cannot conclusively determine the exact amount of fees Isovolta incurred pursuing its claims against Firecheck
and Tyco in the block-billed time entries does not outright preclude recovery in this case. See
Rexam Bev. Can Co. v. Bolger, 620 F.3d 718, 737, 739 (7th Cir. 2009) (affirming district court
applying Illinois law for employing “practical solution” to a fee division problem by “excluding
items clearly attributable to the extracontractual claims” and removing one-third of fees accrued
before non-contractual claims became “intertwined” with contractual claims).
Based on its overall sense of the suit, including ProTrans’ concession regarding its responsibility for a portion of the block-billed fees and Isovolta’s failure to present an alternative
that complies with Indiana law, the Court concludes that ProTrans’ apportionment methodology
is a practical solution to the problem posed by the interaction between the parties’ fee-shifting
provision and Isovolta’s block billing. The Court disagrees with ProTrans, however, regarding
the start date of the second time period, finding that instead of it starting “days before Isovolta
filed its motion for leave to file a second amended complaint,” [dkt. 321-1 at 2], it should start
the day Isovolta actually filed that motion—October 12, 2009.8 Therefore, the Court modifies
ProTrans’ proposed apportionment as follows:

8

This modification results in the reduction of attorney’s fees being $1,108.57 less than what
ProTrans proposed and the reduction for costs being $2.50 less than what ProTrans proposed.
[See dkt. 321-2 at 2, 4 ($1,108.57 of time entries between September 29, 2009 and October 11,
2009 for which ProTrans erroneously deducted fees); dkt. 321-9 at 4 ($2.50 photocopy cost incurred on September 10, 2009 that ProTrans erroneously deducted).]
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Court’s General Apportionment of Fees and Costs

1

2

3
4

Time Period
Starts
October 1, 2008
(Complaint filed)
October 12, 2009
(Isovolta Second
Amended Complaint filed)
September 24,
2010
February 15,
2011

Time Period
Ends
October 11, 2009

Defendants in
Litigation
ProTrans

September 23, 2010
ProTrans, Firecheck, &
(Firecheck disTyco
missed)
February 14, 2011
(Tyco dismissed)
June 14, 2011 (last
billing entry)

ProTrans’
Portion of Fees
100%

33.3%

ProTrans & Tyco

50%

ProTrans

100%

The Court also deducts the fees and expenses ProTrans identified as being incurred by
Isovolta exclusively to pursue its independent claims against Firecheck or Tyco. [Dkts. 321-3 to
321-8 (blue highlighting).] Isovolta cannot recover these expenses under the fee-shifting provision of its contract with ProTrans, and it does not challenge the classification of any of the entries ProTrans highlighted or ProTrans’ mathematical calculation regarding the total amount of
fees it proposed to be excluded. Additionally, the Court has reviewed the time entries ProTrans
excludes and agrees with ProTrans’ assessment.
Based on this apportionment (with the Court’s modification of the start date for the
second time period) and the exclusions for the identifiable Tyco or Firecheck entries, the Court
deducts $113,150.57 of attorney’s fees from Isovolta’s request and $37,254.60 of costs.
C. Reasonableness of Remaining Request
Based on the reductions detailed in the previous section, Isovolta’s request for attorney
fees is reduced to $235,646.01 and its request for costs is reduced to $24,350.98. The Court
must now determine whether that request is reasonable.
The party requesting the fee award bears the burden of proving the reasonableness of the
fee. Spegon v. Catholic Bishop, 175 F.3d 544, 550 (7th Cir. 1999) (citation omitted). In the Se- 13 -

venth Circuit, “the best evidence of whether attorney’s fees are reasonable is whether a party has
paid them.” Cintas Corp. v. Perry, 517 F.3d 459, 469 (7th Cir. 2008) (citation omitted); see also
Balcor Real Estate Holdings v. Walentas-Phoenix Corp., 73 F.3d 150, 153 (7th Cir. 1996) (“the
best guarantee of reasonableness is willingness to pay”). Presenting evidence that the petitioner
paid its fees before the jury reached a verdict in its favor also supports the reasonableness of the
fee. Balcor, 73 F.3d at 153.
As previously indicated, it is well-established in Indiana that the purpose of a fee-shifting
provision is “to make the prevailing party to a contract whole.” Walton, 825 N.E.2d at 825. A
court abuses its discretion if it reduces an otherwise reasonable fee request based on the amount
of the judgment. Gerstbauer, 898 N.E.2d at 380. If a plaintiff is requesting fees, it is essential to
focus on the effort required to overcome the defendant’s opposition. Allied Enters., Inc. v. Exide
Corp., 2002 U.S. Dist. LEXIS 4553, *12 (S.D. Ind. 2002) (applying Indiana law). A defendant
is entitled to “litigate [a] case to the hilt, but having done so, it cannot now complain that [Plaintiff’s] counsel had to spend too much time on the case in comparison to ultimate damages recovered.” Id. at *13.
Aside from its request to deny Isovolta’s fee request outright, which the Court has already rejected, ProTrans does not challenge the reasonableness of the amount of fees remaining
after the apportionment and exclusion method it proposes. Specifically, ProTrans does not challenge the billable rates of the Isovolta attorneys or paralegal that staffed the case or the amount
of time any of those professionals spent on any task. And, as previously noted, ProTrans does
not challenge either the fees or costs Isovolta incurred before it amended its complaint to assert
independent claims against Firecheck and Tyco or the fees or costs it incurred after the date the
last of those parties was a defendant in the case (February 14, 2011).

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Pursuant to Indiana law detailed above, Isovolta is entitled to be made whole for the reasonable fees and costs expended enforcing the contract with ProTrans pursuant to the fee-shifting
provision. The fact that the jury awarded Isovolta less than its request and much less than the
amount of fees it now seeks to recover does not preclude a hefty fee award in favor of Isovolta.
One of the key indicators of reasonableness is that Isovolta has already paid the requested
amount of legal fees and costs. [Dkts. 324; 324-1.] Moreover, the evidence establishes that Isovolta actually paid those fees and costs as they were incurred before the jury reached a verdict in
its favor. [See, e.g., dkt. 324-1 at 1.] This evidence strongly favors a conclusion that the requested amount of fees is reasonable.
Additionally, it is clear that ProTrans’ all-or-nothing litigation strategy forced Isovolta to
expend great expense to pursue its claim against ProTrans. After the incident damaging the
goods in ProTrans’ possession, Isovolta submitted a proof of loss to ProTrans in April 2008 for
$104,356.06. ProTrans does not dispute that it did not offer anything to Isovolta to settle this
case until January 2011—more than two years into this litigation—when it offered Isovolta
$15,000 (14% of Isovolta’s proof of loss). [Dkt. 308 at 7.] By that time, Isovolta and ProTrans
had already conducted extensive discovery9 and briefed four summary judgment motions. [Dkts.
32; 127; 167; 180.]
It was ProTrans’ choice to litigate this case to the hilt and hang its hat on the hope that a
reasonable jury would issue a complete defense verdict. But this strategy—particularly ProTrans’ decision to forgo making or accepting meaningful settlement offers—forced Isovolta to
incur substantial fees to pursue its claim against ProTrans. ProTrans was aware of the feeshifting provision in its contract with Isovolta, as shown by its demand in February 2010 that
9

ProTrans’ witness list contained 48 named witnesses, many of whom were located outside the
state of Indiana. [Dkt. 188.]
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Isovolta pay ProTrans $107,097.10 to compensate ProTrans for the fees incurred to that date.
[Dkt. 308 at 6.] As Isovolta emphasizes, the fees ProTrans had incurred by that date—sixteen
months into the litigation and fifteen months before the case was tried—were already higher than
the amount of Isovolta’s proof of loss submitted to ProTrans in April 2008. Having chosen this
strategy and being aware of the applicable fee-shifting provision, ProTrans cannot now complain
that Isovolta’s fees were too high given the amount of the jury’s verdict. Isovolta was the prevailing party and is entitled to be made whole pursuant to the parties’ contract, especially in light
of applicable Indiana law directing courts not to reduce a fee request based on the amount of
judgment.
For these reasons, the Court concludes that the amount of Isovolta’s request is reasonable
after the reduction for party apportionment and the exclusions based on identifiable nonrecoverable entries. Therefore, the Court awards Isovolta $235,646.01 in attorney’s fees and
$24,350.98 in costs.10
D. Effect of Fee-Shifting Provisions on Litigation
This case compels the Court to briefly comment about the practical effect of fee-shifting
provisions on litigation. Through its experience, both in this case and in others, the Court has
observed that the presence of contractual fee-shifting provisions often hinders a party’s realistic
assessment of its case, emboldening it to litigate aggressively on the hope that it will ultimately
10

Isovolta summarily requests $15,000 “for fees it anticipates incurring from June 14, 2011 forward.” [Dkt. 308.] ProTrans objects to Isovolta’s unsupported request. [Dkt. 321 at 4.] Isovolta does not detail how it arrived at the $15,000 figure or cite any authority supporting its request
for anticipated fees. It has not submitted any post- June 14, 2011 bills it has received from its
counsel detailing the tasks for which it was billed, and it did not reply to ProTrans’ objection to
the unsupported request. The Court construes Isovolta’s silence as an acceptance of the merits of
the objection and, therefore, denies Isovolta’s request for $15,000 of anticipated fees. See
Greenlaw v. United States, 554 U.S. 237, 243-44 (2008) (“[O]ur adversary system is designed
around the premise that the parties know what is best for them, and are responsible for advancing
the facts and arguments entitling them to relief.”).
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prevail and recover all of its attorney’s fees. As illustrated by ProTrans’ unsuccessful strategy,
this impaired judgment can instead lead to a regrettable outcome where, in addition to its own
legal fees, the aggressive party ends up paying its opponent a significantly higher sum than it
would have paid had it simply accepted its opponent’s initial demand or meaningfully negotiated
a middle ground. Put plainly, a loser pays twice. If ProTrans’ $107,097.10 demand in February
2010 to cover its own attorney’s fees is any indicator of the fees it ultimately incurred to take this
case to trial in May 2011, ProTrans’ own legal expenses ended up being a multiple of the
$104,356.06 proof of loss Isovolta presented to it in April 2008. The irony that the amount of
the adverse fee award is more than twice Isovolta’s original proof of loss is obvious.
IV.
CONCLUSION
For the reasons detailed herein, the Court GRANTS IN PART Isovolta’s Motion for
Fees and Costs, [dkt. 308], and ORDERS ProTrans to pay Isovolta $235,646.01 in attorney’s
fees and $24,350.98 in costs. These amounts will be included in the Final Judgment issued this
date.
09/14/2011
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution via ECF only:
Scott J. Brown
CASSIDAY SCHADE LLP
[e-mail]
Braden Kenneth Core
SCOPELITIS GARVIN LIGHT HANSON & FEARY PC
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Eric K. Habig
SCOPELITIS GARVIN LIGHT HANSON & FEARY PC
[e-mail]
Lia M. Hanson
STUART & BRANIGIN LLP
[e-mail]
Katharine Hoyne Hosty
CASSIDAY & SCHADE LLP
[e-mail]
Brent Emerson Inabnit
SOPKO NUSSBAUM INABNIT & KACZMAREK
[e-mail]
William P. Kealey
STUART & BRANIGIN
[e-mail]
Brandon J. Kroft
CASSIDAY SCHADE LLP
[e-mail]
John Mathews Stuckey
STUART & BRANIGIN LLP
[e-mail]
Emily J. O. Sullivan
SHOOK HARDY & BACON L.L.P.
[e-mail]
Stanley Yorsz
BUCHANAN INGERSOLL & ROONEY PC
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