Liberty Mutual Insurance Company v. ConMas, Inc. et al
MEMORANDUM-DECISION AND ORDER granting 27 Motion for Attorney Fees. ORDERED, that plaintiffs motion for attorneys fees and costs (Dkt. No. 27) is GRANTED. Plaintiff is entitled to recover $58,884.00 in attorneys fees from defendants and $1,363.41 in costs from defendants; it is further ORDERED that the Clerk is directed to enter judgment for attorneys fees and costs inthe amount of $60,247.41. Signed by U.S. District Judge Mae A. D'Agostino on 3/16/12. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
LIBERTY MUTUAL INSURANCE COMPANY,
CONMAS, INC., CONSOLIDATED MASONRY
CONTRACTORS, INC., STEVEN TAYLOR and
ERNSTROM & DRESTE, LLP
180 Canal View Blvd
Rochester, New York 14623
Attorney for Plaintiff
Matthew D. Brown, Esq.
HINMAN, HOWARD & KATTELL, LLP.
80 Exchange Street
700 Security Mutual Building
Binghamton, New York 13901
Attorney for Defendants
Harvey D. Mervis, Esq.
Mae A. D’Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Liberty Mutual Insurance Company (“plaintiff” or “Liberty”) commenced the within
action against defendants for breach of a General Agreement of Indemnity (“Agreement”).
Specifically, plaintiff asserted causes of action for breach of contract, common law indemnity,
specific performance and attorneys’ fees. Familiarity with the background in this case is assumed
based on this Court’s previous Memorandum-Decision and Order. See Liberty Mutual Ins. Co. v.
Conmas, Inc., 10-CV-0717, Dkt. No. 25 (October 20, 2011) (Memorandum-Decision and Order).
In the prior Memorandum-Decision and Order, the Court granted plaintiff’s motion for summary
judgment against defendant and awarded plaintiff $814,146.61 in damages including post
judgment interest. However, due to insufficient evidence, the Court directed plaintiff to reapply
for an award of attorneys’ fees. On November 18, 2011, plaintiff timely filed the within motion
with documentation of their costs and fees. (Dkt. No. 27). Defendants have not responded.
“Under New York law, a contract that provides for an award of reasonable attorneys' fees
to the prevailing party in an action to enforce the contract is enforceable if the contractual
language is sufficiently clear.” NetJets Aviation, Inc. v. LHC Commc’n, LLC, 537 F.3d 168, 175
(2d Cir. 2008). A provision for indemnification of attorneys' fees will be enforced but only if it is
unmistakably clear that the parties intended to provide for payment of attorneys' fees relating to
disputes between themselves. Mid–Hudson Catskill Rural Migrant Ministry, Inc. v. Fine Host
Corp., 418 F.3d 168, 178–79 (2d Cir.2005).
The relevant portions of the agreement herein provide:
The indemnitors shall exonerate, hold harmless, indemnify and keep
indemnified the Surety from and against any and all liability for
losses, fees, costs and expenses of whatsoever kind or nature including
but not limited to pre- and post-judgment interest at the maximum rate
permitted by law accruing from the date of a breach of this Agreement
or a breach of any other written agreements between or for the benefit
of the Surety and the Indemnitor(s) and/or Principal(s) (hereinafter
referred to as “Other Agreements”), court costs, counsel fees,
accounting, engineering and any other outside consulting fees and
from and against any and all such losses, fees, costs and expenses
which the Surety may sustain or incur: (1) by reason of being
requested to execute or procure the execution of any Bond; or (2) by
reason of the failure of the Indemnitors or Principals to perform or
comply with any of the covenants and conditions of this Agreement or
Other Agreements; or (4) in enforcing any of the covenants and
conditions of this Agreement or Other Agreements.
If the Surety determines, in its sole judgment, that potential liability
exists for losses and/or fees, costs and expenses for which the
indemnitors and Principals will be obliged to indemnify the surety
under the terms of this Agreement or any Other Agreements, the
indemnitors and/or Principals shall deposit with the Surety, promptly
upon demand, a sum of money equal to an amount determined by the
Surety or collateral security of a type and value satisfactory to the
Surety, to cover that liability, whether or not the Surety has: (a)
established or increased any reserve; (b) made any payments; or (c)
received any notice of any claims thereof.
. . . the vouchers and/or evidence of any such payments made by the
Surety shall be prima facie evidence of the fact and the amount of the
liability to Surety.
This provision is broad enough to provide for attorneys’ fees, costs and disbursements
incurred by plaintiff as a result of the breach of the Agreement. See Abramo v. Shaw, 2008 WL
150458, at *3 (N.D.N.Y. 2008). Moreover, defendants did not oppose plaintiff’s summary
judgment motion and have not submitted any opposition or objection to the payment of attorneys
fees. Without any objection from defendant regarding the parties intent, the Court is compelled
to find that the contractual language regarding fees is sufficiently clear to warrant an award to
plaintiff. See Am. Motorists Ins. Co. v. United Furnace Co., Inc., 1990 WL 9321, at *1 (S.D.N.Y.
1990 (there is no serious question that there is an agreement between the parties for the payment
of attorneys’ fees).
Having determined that the contractual provision is clear, the Court turns to the
reasonableness of the fees. In determining a reasonable fee, a court must decide “what a
reasonable paying client would be willing to pay” for the legal services provided, or in other
words, the appropriate market rate for counsel. Arbor Hill Concerned Citizens Neighborhood
Ass'n v. County of Albany, 493 F.3d 110, 112 (2d Cir.2007), amended on other grounds, 522 F.3d
182, 184 (2d Cir. 2008). The prevailing community is the district in which the court sits.
Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997). In determining what is reasonable,
the following factors are useful:
(1) the time and labor required; (2) the novelty and difficulty of the
questions; (3) the level of skill required to perform the legal service
properly; (4) the preclusion of employment by the attorney due to
acceptance of the case; (5) the attorney's customary hourly rate; (6)
whether the fee is fixed or contingent; (7) the time limitations imposed
by the client or the circumstances; (8) the amount involved in the case
and the results obtained; (9) the experience, reputation, and ability of
the attorneys; (10) the “undesirability” of the case; (11) the nature and
length of the professional relationship with the client; and (12) awards
in similar cases.
Arbor Hill Concerned Citizens Neighborhood Ass'n, 522 F.3d at 186 n. 3.
Here, plaintiff requests fees associated with its efforts in the instant matter for services
rendered by Ernstrom & Dreste, LLP. Plaintiff seeks “total legal costs” of $60,247.00 including
$58,884.00 in attorneys’ and paralegal’s fees and $1363.00 in costs. Plaintiff submitted a
schedule representing the legal time incurred as follows:
Attorney Matthew D. Brown 147.4 hours x $195.00/hr
Attorney Theodore M. Baum 127.7 hours x $225.00/hr
Attorney Thomas K. O’Gara 38.2 hours x $145.00/hr
Paralegal Lisa M. Schwarz 3.9 hours x $85.00/hr
Paralegal Laurie A. LoMonaco 4.7 hours x $85.00/hr
= $ 27,144.00
= $ 28,248.00
= $ 4,132.50
= $ 323.00
= $ 399.50
= $ 60,247.001
Attorney Baum asserts that he has over twenty years experience in the area of construction
and surety work. The record does not contain an affidavit or any evidence with regard to the
experience of attorneys Brown or O’Gara. However, the hourly rate charged by both attorneys is
within the acceptable hourly rate within this District. See Jimico Enter., 2011 WL 4594141, at
*10 (in this District, cases have upheld an hourly rate for a partner of between $250 and $345).
The court has calculated the hours by the hourly rate and finds that the sum is different than the total
represented by plaintiff. The Court calculates the sum for 321.9 hours at the applicable rates as $63,437.00.
However, plaintiff has sought a total of $60,247.00 including costs. The Court has no basis to deviate from that
request to award plaintiff an amount more than what is set forth in plaintiff’s submissions.
Defendants do not object to these fees as uncollectible, unreasonable, or should "shock the
conscience" of the Court. See First Nat. Ins. Co. of Am. v. Joseph R. Wunderlich, Inc., 358
F.Supp.2d 44, 57 (N.D.N.Y. 2004). The Court finds the hourly rates sought to be reasonable.
As to the number of hours, plaintiff asserts that a total of 321.9 hours were spent on this
matter (313.3 in attorney time and 8.6 in paralegal time) from March 2010 until the present.
"[T]o determine whether time for which reimbursement is sought was reasonably spent, the court
must evaluate the tasks and the time documented in counsel's contemporaneous time records in
light of its general experience and its experience with the case." DLJ Mortg. Capital, Inc. v. Act
Lending Corp., 2008 WL 5517589, at *7 (S.D.N.Y. 2008) (citing New York State Ass'n for
Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146-48 (2d Cir. 1983) (a fee application must
be supported by contemporaneous time records that "specify, for each attorney, the date, the hours
expended, and the nature of the work done)). Having reviewed counsel's billing statements and
Attorney Baum’s affidavit, the Court finds that counsels' hours associated with pursuing this
action are supported by contemporaneous time records that show, for each attorney, the date, the
hours expended, and the nature of the work done. Time was expended and recorded to the tenth
of the hour. Moreover, in addition to bringing the within action, due to defendants’ breach,
counsel avers that over the course of nearly two years, the legal work also included working with
each obligee, “to ensure all ConMas work was completed”, negotiating with project owners
regarding punch list work and unfinished work, defending legal actions on plaintiff’s behalf on
ConMas projects. Based upon the work performed and the experience of counsel, the Court finds
that all recorded time is reasonable.
Plaintiff also seeks reimbursement for costs in the amount of $1,363.41. Plaintiff has
submitted a statement identifying its costs as follows:
Service of Process
Therefore, the Court grants plaintiff’s request for costs.
It is hereby
ORDERED, that plaintiff’s motion for attorneys’ fees and costs (Dkt. No. 27) is
GRANTED. Plaintiff is entitled to recover $58,884.00 in attorneys’ fees from defendants and
$1,363.41 in costs from defendants; it is further
ORDERED that the Clerk is directed to enter judgment for attorneys’ fees and costs in
the amount of $60,247.41.
IT IS SO ORDERED.
Dated: March 16, 2012
Albany, New York
The Court calculates this sum at $1366.41. However, the Court will award plaintiff the amount sought in
the Notice of Motion.
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