Ciaramitaro v. UNUM Life Insurance Company of America et al

Filing 90

ORDER on Remand awarding attorney fees. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TAMARA CIARAMITARO,
Plaintiff,

Case No. 09-CV-13492
HON. GEORGE CARAM STEEH

vs.
UNUM LIFE INSURANCE, et al.,
Defendants.
_____________________________/
ORDER ON REMAND AWARDING ATTORNEY FEES
This matter was recently remanded by the Sixth Circuit solely as to the issue of an
ERISA attorney fee award. The parties have now submitted supplemental briefing on the
issue, and oral argument was held July 16, 2013.
As plaintiff highlights, the Sixth Circuit stated the following reasoning for vacating this
court’s award of $5,000 in attorney fees:
There is no Lodestar calculation or any explanation at all for how the District
Court, once it determined that Plaintiff was entitled to fees, came up with the
$5,000.00 amount. Therefore, in order to allow for a meaningful appellate
review, we vacate the District Court’s attorney’s fee award and remand for
the District Court to reconsider or further explain its conclusion.
Ciaramitaro v. Unum Life Ins. Co. of America, 2013 WL 1339076 at *7. As discussed by
the Sixth Circuit’s decision, it has previously held (albeit in an unpublished case) that the
case of Hardt v. Reliance Standard Life Insurance Co., 560 U.S. 242 (2010) “relaxed the
threshold for eligibility for attorney’s fees–from ‘prevailing party’ to ‘some degree of success
on the merits.’” O’Callaghan v. SPX Corp., 442 F. App’x 180 (6th Cir. 2011). See also
McKay v. Reliance Standard Life Ins. Co., 428 F. App’x 537, 546 (6th Cir. 2011).
-1-

Nonetheless, application of the traditional five-factor Secretary of Department of Labor v.
King, 775 F.2d 666, 669 (6th Cir. 1985), test in deciding whether to award attorney’s fees
remains appropriate. See Hardt, 130 S. Ct. at 2158, n.8, McKay, 428 F. App’x at 546.
While this court’s previous order referenced those factors, it did so in a cursory manner,
and did not apply a lodestar in making its award. The renewed argument of the parties,
along with the court’s focused consideration of plaintiff’s counsel’s efforts and the King
factors, has persuaded the court to make a somewhat larger award of attorney fees than
it did in its vacated order.
The first King factor, which requires the court to assess the degree of Unum’s
culpability or bad faith, does not weigh very significantly in the court’s award. In its earlier
order, the court found that Unum had some culpability in failing to closely examine plaintiff’s
worker’s compensation award, instead offsetting the entire amount awarded. The court will
again give some weight to Unum’s treatment of the worker’s compensation award, as it did
in its previous order. However, it finds that the parties’ current arguments concerning
Unum’s alleged objection to including certain medical reports in the record does not weigh
in either party’s favor. Unum’s arguments concerning the medical reports demonstrates
to the court that its approach was reasonable, and the court agrees that it does not appear
that these particular reports were “instrumental” in Unum’s decision on remand. Therefore,
on balance, the first King factor is weighted only slightly in plaintiff’s favor.
Regarding the second King factor, the opposing party’s ability to satisfy the award,
there is no dispute concerning the parties’ relative financial situations.
Concerning the third factor, deterrent effect of an award on other persons similarly
situated, the court appreciates Unum’s argument that an award would have the effect of
-2-

punishment, which Unum has argued does not take into account its cooperative efforts in
this case. On the other hand, the court also finds that plaintiff’s need to file a lawsuit and
pursue her claims in this matter is a significant factor, although the assistance of counsel
in this matter was perhaps not as crucial as some where the plan administrator is less
responsive.
The fourth and fifth King factors are “(4) whether the party requesting fees sought
to confer a common benefit on all participants and beneficiaries of an ERISA plan; and (5)
the relative merits of the parties’ positions.” Foltice v. Guardsman Prods., Inc., 98 F.3d
933, 936-37 (6th Cir. 1996) (citing King, 775 F.2d at 669). As it did in its June 2012 order,
although without explicitly stating so, the court finds that on balance, these factors do not
significantly assist the plaintiff’s fee request. Plaintiff did not seek to confer any common
benefit on plan participants, and the merits of the parties’ positions were not determined
by the court, given that Unum voluntarily awarded benefits to plaintiff during the pendency
of the litigation. However, the court is of the opinion that at least some of the actions taken
by Unum were triggered by the filing of this litigation generally and more specifically by
plaintiff’s motion practice in the case, which the court has taken into consideration in this
determination.
In examining the amount of fees requested by plaintiff, which totaled nearly $50,000,
the court previously found that plaintiff was entitled to only one tenth of that amount. The
court notes that it made this decision finding that Unum’s decision to award benefits was
largely based upon plaintiff’s worker’s compensation and SSDI materials. Furthermore, the
court agreed that plaintiff submitted much of the influential material to Unum on remand
before plaintiff’s counsel appeared on the scene in August 2010. The renewed briefing and
-3-

recent hearing on this issue has impacted the court’s decision on this matter, convincing
it to increase the award. The court has taken into account the number of hours plaintiff’s
counsel spent on aspects of this case the court agrees were necessary, and will add a
limited amount of compensation to its previous award for these matters.
The court will next apply a lodestar formula to the work of plaintiff’s counsel the court
finds compensable. Plaintiff’s counsel filed an appearance in this matter in early August,
2010, following which he logged a large number of hours reviewing the administrative
record and litigation history and briefings and conferring with his client. A few months later,
plaintiff filed a motion to clarify production of the administrative record.

Defendant

highlights 6.5 hours specifically identified in connection with the October 14, 2010 motion,
but argues that counsel should be compensated for only 3.25 of those hours. The court
finds that the time identified by Unum is a reasonable amount of compensable time for this
particular motion–which as plaintiff argues, was partially successful for her. It will award
plaintiff 6.5 hours of attorney fees on that motion.
Following that motion, plaintiff’s counsel filed a motion to compel Unum to submit
a final determination.

Unum explains why, from its perspective, that motion was

unreasonable, for the reason that Unum had stipulated to a better result than that ultimately
reached by disposition of plaintiff’s motion. However, Unum’s explanation does not
address the fact that it appears the stipulation offered by Unum was proposed only after
plaintiff filed the motion. Upon questioning at oral argument concerning this issue, counsel
for Unum indicated that he did not recall the sequence of events. Accordingly, the court
finds the filing of the motion entirely reasonable, while pursuing it after Unum’s response
may not have been. The court will therefore credit plaintiff’s counsel with 4.25 hours of
-4-

compensable time on that motion.
The remaining matter specifically addressed in the briefing is a June 20, 2011
motion for explanation of the benefit award. The court agrees to some extent with each
party’s argument here. While Unum argues that plaintiff did not obtain any of her requested
relief, the court notes that again it was an in-chambers meeting that resulted in the proposal
made by Unum and ultimately ordered by the court. That outcome was undoubtedly
assisted by the motion practice of plaintiff’s counsel. While the court agrees with defendant
that many of the hours on plaintiff’s counsel’s billing statement might have been avoided,
the court will make a limited award of compensable time it concludes is reasonable.
Accordingly, the court will award the 3.25 hours listed for attending the hearing on the
motion and a total of 13 hours for the drafting of briefing, research, and conferences
conducted in connection with that motion.
The court acknowledges that plaintiff’s counsel’s billing records include many more
hours devoted to file review, conferences, drafting of documents, and client contact. The
court is of the opinion that under the particular circumstances present here, a limited
additional award should be granted to compensate plaintiff’s counsel for some of that time.
The court is well aware of the uniquely high level of the client’s involvement in this case.
In fact, plaintiff’s counsel has openly acknowledged his time spent conferring with plaintiff
was “excessive,” but nevertheless undertaken to insure her full understanding of his
undertakings and their results in the case. The court finds an award of fees representing
10 hours of time devoted by plaintiff’s counsel to communication with his client to be
appropriate, which it recognizes is a fraction of the time actually spent on this aspect of the
case. Finally, the court will award an additional six hours of time spent on review of the
-5-

record and additional administrative activities of plaintiff’s counsel.
All told, the court has identified a total of 43 hours it finds were reasonably spent on
the case by plaintiff’s counsel. Further, the court finds, and defendant does not dispute,
that the requested hourly rate of $225.00 is reasonable. Accordingly, the court will award
$9675.00 in attorney fees for plaintiff’s counsel.
IT IS SO ORDERED.
Dated: July 23, 2013
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
July 23, 2013, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

-6-