Fallow v. Bankers Life and Casualty Company

Filing 114

ORDER: Granting in Part Denying in Part Motion for Attorney Fees 93 .Please access entire text by document number hyperlink. Signed on 09/11/2013 by Magistrate Judge Mark D. Clarke. (rsm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

DENNIS EVAN FALLOW, as Personal
Representative ofthe ESTATE OF
KATHERINE FALLOW
Case No. 1: 11-cv-03088-CL
Plaintiff,
V.

ORDER
BANKERS LIFE AND CASUALTY
COMPANY,
Defendant.

CLARKE, Magistrate Judge.
This matter comes before the court on plaintiffs motion for attorney fees (#93). Plaintiff
Dennis Evan Fallow ("plaintiff') originally filed this diversity action on April 14,2011, in the
Josephine County Circuit Court. On July 27, 2011, defendant Bankers Life and Casualty
Company ("Bankers") removed the case to federal court (#1). Both parties executed written
consent to entry of judgment by a magistrate judge (#26) and, after discovery and several
amendments to the complaint, filed motions for summary judgment (#44, 48). On January 15,

Page I -ORDER

2013, the court granted plaintiffs motion for partial summary judgment, and granted in part and
denied in part defendant's motion for summary judgment (#79). Bankers subsequently made an
offer of judgment (#87) pursuant to Federal Rule of Civil Procedure ("FRCP") 68 in the amount
of $40,230.23, exclusive of attorney fees and costs. Plaintiff accepted, and the court entered
judgment (#88) for plaintiff in the amount of $40,230.23, plus reasonable costs and attorney fees
to be determined pursuant to FRCP 54. Plaintiff then filed a motion for attorney fees (#93). For
the reasons stated below, the court awards plaintiff attorney fees in the amount of $51,068.55.

BACKGROUND
This action arises out of a dispute between the parties concerning the availability of
insurance coverage. Bankers issued a long-term care insurance policy to Katherine Fallow,
plaintiffs son and the personal representative of her estate. Bankers denied reimbursement for
certain care providers, and subsequently plaintiff sued Bankers for breach of contract, bad faith,
and fraud. The court granted summary judgment to plaintiff on its breach of contract claim, and
granted summary judgment to Bankers on plaintiffs bad faith and fraud claims.
Plaintiff now requests attorney fees in the amount of $101,673.25 pursuant to ORS §
742.061.

1

Bankers argues that plaintiff should receive $7,500 in attorney fees, reflecting only the
\

amount of work done by plaintiffs counsel through April 20, 2011, the date Bankers made a
settlement offer. Bankers argues that if the court chooses to award fees for work beyond April
20, 2011, plaintiffs fees should be reduced because (1) only one of plaintiffs three claims was
successful; (2) plaintiffs counsel's hourly rates were higher than the customary hourly rate for
the area; (3) plaintiffs counsel utilized block billing and vague descriptions of work; and (4)
plaintiffs counsel charged for routine clerical work.
1

Plaintiff's motion for attorney fees requests $108,348.75 in fees. Plaintiff's reply in support of their motion,
however, modifies the request to $10 I ,673.25, reducing the time that plaintiff alleges it spent on its unsuccessful bad
faith and fraud claims. Pltf. Reply in Supp. of Mot., pp. 4-5.
Page 2- ORDER

STANDARDS
In a diversity case, the law of the state where the district court sits determines entitlement
to attorney fees. Carnes v. Zamani, 488 F.3d 1057, 1059 (9th Cir. 2007) (internal citation
omitted). In this case, plaintiff seeks attorney fees pursuant to ORS § 742.061, which provides in
relevant part:
[I]f settlement is not made within six months from the date proof of loss is filed
with an insurer and an action is brought in any court of this state upon any policy
of insurance of any kind or nature, and the plaintiffs recovery exceeds the
amount of any tender made by the defendant in such action, a reasonable amount
to be fixed by the court as attorney fees shall be taxed as part of the costs of the
action and any appeal thereon.
When these statutory requirements are met, the court must grant attorney fees. Petersen
v. Farmers Ins. Co. of Or., 162 Or.App. 462, 466 (1999). Once the court decides to grant
attorney fees, the court must determine the reasonableness of the award based on a two-part
inquiry prescribed by ORS § 20.075. McCormick & Schmick's Seafood Rest., Inc. v. Nat'l
Union Fire Ins. Co. ofPittsburgh, Civ. No. 08-1011-AA, 2011 WL 4625728, at *4 (D.Or. Sept.
30, 2011) (citations omitted). Specifically, the court must consider the factors identified in ORS
§ 20.075(1) in combination with the eight factors set forth in ORS § 20.075(2). Id. The court
must list the factors or briefly explain the reasons for its decision. Id.
ORS § 20.075(1) requires courts to consider the following factors when determining the
reasonableness of a fee request:
(a) The conduct of the parties in the transactions or occurrences that gave rise to
the litigation, including any conduct of a party that was reckless, willful,
malicious, in bad faith, or illegal.
(b) The objective reasonableness of the claims and defenses asserted by the
parties.
(c) The extent to which an award of an attorney fee in the case would deter others
from asserting good faith claims or defenses in similar cases.
(d) The extent to which an award of an attorney fee in the case would deter others
from asserting meritless claims and defenses.

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(e) The objective reasonableness ofthe parties and the diligence of the parties and
their attorneys during the proceedings.
(f) The objective reasonableness of the parties and the diligence of the parties in
pursuing settlement of the dispute.
(g) The amount that the court has awarded as a prevailing party fee under ORS §
20.190
(h) Such other factors as the court may consider appropriate under the
circumstances.
The second part of the two-part inquiry requires the court to consider the following
factors listed in ORS § 20.075(2):
(a) The time and labor required in the proceeding, the novelty and difficulty of
the questions involved in the proceeding and the skill needed to properly
perform the legal services.
(b) The likelihood, if apparent to the client, that the acceptance of the particular
employment by the attorney would preclude the attorney from taking other
cases.
(c) The fee customarily charged in the locality for similar legal services.
(d) The amount involved in the controversy and the results obtained.
(e) The time limitations imposed by the client or the circumstances of the case.
(f) The nature and length of the attorney's professional relationship with the
client.
(g) The experience, reputation and ability of the attorney performing the services.
(h) Whether the fee of the attorney is fixed or contingent.

DISCUSSION
I.

Apportionment of Fees
"When a party prevails in an action that encompasses both a claim for which attorney

fees are authorized and a claim for which they are not, the trial court must apportion attorney
fees, except when there are issues common to both claims." Bennett v. Baugh, 164 Or.App. 243,
247 (1999) (citing Greb v. Muarray, 102 Or.App. 573, 576 (1990)). When the claims contain
common legal issues, however, the court need not apportion fees, because "the party entitled to
fees would have incurred roughly the same amount of fees irrespective of the additional claim or
claims." Id. at 248 (citing Freedland v. Trebes, 162 Or.App. 374,378-79 (1999)).

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Here, plaintiff is entitled to attorney fees pursuant to ORS § 742.061 for its breach of
contract claim. Section 742.061 does not, however, authorize fees related to a tort claim against
an insurer. Goddard v. Farmers Ins. Co., 177 Or.App. 621, 625 (2001). The parties do not
contest that plaintiffs tort claims contain legal issues separate from the breach of contract claim.
They dispute, however, the amount of time spent on the bad faith and fraud claims. Plaintiff
contends that he spent only $6,667.50 in fees incurred for these claims and the remaining
$101,673.25 on "litigating [Bankers'] breach of contract claim and battling Bankers' litigation
tactics." Pltf. Reply in Supp. ofMot., p. 4. Bankers argues that plaintiff spent more than
$6,667.50 on these claims, arguing that the amount should include the costs for plaintiffs
Second Request for Production, which was primarily focused on plaintiffs bad faith and fraud
claims.
Having reviewed the relevant entries, the court agrees with Bankers that the fees related
to plaintiffs Second Request for Production should not be included in plaintiffs award. The
Second Request for Production largely focused on obtaining Bankers' policy and procedure
manual, materials reflecting Bankers' coordination with the Oregon Home Health Care
Commission, and other documents regarding Bankers' compliance that related to plaintiffs bad
faith and fraud claims. Accordingly, the court reduces plaintiffs award an additional 23 hours
for the spent preparing the Second Request for Production, for a fee reduction of $4,556.

II.

2

ORS § 20.075(l)(a)-(b)
The court finds that the conduct ofthe parties in the transactions that gave rise to the

litigation was reasonable. At its core, this case involved a dispute about the applicability of an

2

See entries dated 4/2/12,4/13/12,4/14/12,4/16/12 (two entries), 4/18/12,4/21/12,4/25/12,4/26/12,4/27/12,
4/30/12, 5/23/12,6/11/12, 6/12/12, 7/2/12,7/6/12, and 7/9/12.
Page 5- ORDER

insurance policy. At no point did either party engage in any activity that can be characterized as
"reckless, willful, malicious, in bad faith or illegal." ORS § 20.075(1)(a).
While factor (a) is neutral, however, factor (b) weighs in favor of Bankers. Plaintiff's tort
claim of bad faith, which asserts that Bankers acted in bad faith by refusing to reimburse the cost
of certain care providers, is not supported by Oregon case law. As the court noted in its order on
the parties' dispositive notions, it is well-settled that"[a]n insurer's bad faith refusal to pay policy
benefits to its insured sounds in contract and is not an actionable tort in Oregon." Emp'rs Fire
Ins. Co. v. Love It Ice Cream Co., 64 Or.App 784, 791 (1983).
Despite the court's order finding against plaintiff on its bad faith claim, plaintiff
continues to argue that this claim has support in Oregon law. In the briefing in support of the
motion for attorney fees, plaintiff cites to McKie v. Sears Prot. Co., No. CV 10-1531-PK, 2011
WL 1587112 (D.Or. Feb. 22, 2011), for the principle that "tort claims based on conduct that also
breaches a contractual obligation are actionable in certain circumstances." Pltf. Reply in Supp.
of Mot., p. 7. This case does not support plaintiff's claim. McKie centered on the repair of a
furnace protected by an extended service plan sold by defendants. 2011 WL 15 87112, at * 1.
Sears, in an effort to repair the plaintiffs' furnace, sent five different repair technicians to the
plaintiffs' home over a nearly four-month period. Id. One of the repair technicians dispatched
by Sears failed to close a flue pipe valve, causing the plaintiffs to suffer headaches from the
furnace exhaust. Id. Ruling on Sears' motion for summary judgment, the court found that the
plaintiffs could proceed on a breach of contract claim for failing to timely fix the furnace, and on
a negligence claim for physically injuring the plaintiffs by leaving the flue pipe valve open. ld.
at *9. The court emphasized that the negligence claim should survive summary judgment

Page 6- ORDER

because "one of Sears' employees committed an independent act of negligence" beyond the
breach of contract claim. Id.
In the case at hand, in contrast, plaintiff did not allege an independent act of negligence
separate from Bankers' contractual duties. The crux of the bad faith claim is that Bankers
wrongly denied coverage for the care of certain providers- the same as the premise for
plaintiff's breach of contract claim. Because plaintiff's bad faith claim is unsupported by case
law and is thus unreasonable, factor (b) weighs in favor of Bankers.
III.

ORS § 20.075(1)(c)-(e)

The court finds factors (c), (d), and (e) to be neutral.
IV.

ORS § 20.075(1)(f)

Factor (f) falls in Bankers' favor. Bankers made an objectively reasonable settlement
offer relatively early into the case. On April 20, 2011, Bankers sent plaintiff an email entitled
"SETTLEMENT OFFER" and stating that Bankers would "honor past claims fo'r covered
services rendered through the current date, as long as the services have been provided by
caregivers with qualifications at least equal to those held by Ms. Davis and Ms. Watters." Huffer
Affidavit, Ex. A. The email also stated that Bankers would "pay properly documented claims
going forward for covered services," up to $58,400, and that Bankers would work with plaintiff
separately to resolve attorney fees and costs. Id.
On April 25, 2011, Bankers, having not heard from plaintiff, sent plaintiff a second email
asking whether plaintiff had received the settlement offer. Plaintiff replied the same day stating
that he had just received the settlement offer email. Plaintiff did not communicate further about
the offer, and on July 27, 2011, plaintiff filed his complaint in state court. The parties proceeded
with discovery and the filing of dispositive motions. In January 2013, the court ruled on the

Page 7- ORDER

parties' dispositive motions. On July 8, 2013, the court entered judgment for Bankers in the
amount of $40,230.23, representing the entirety of unpaid claims under the policy.
Plaintiff responds that it acted reasonably in failing to respond to the April 20, 2011,
settlement offer because the offer's terms were vague. Specifically, plaintiff argues that they did
not know how Bankers would construe the meaning of "qualifications at least equal to those held
by Ms. Davis and Ms. Watters," thus leaving open the possibility that Bankers would not cover
all ofthe caregivers who had served Katherine Fallow.
The court disagrees with plaintiff's characterization of the settlement offer. This case
centered on whether Linda Davis, a health care worker certified by the state of Washington, and
Lorrie Watters, a health care worker listed on the Oregon Home Health Care Commission's
website, met the policy's definition of a "Qualified Home Health Care Provider." In February
2011, Bankers had told plaintiff in a letter that registered nurses, licensed practical nurses, and
certified nurse aides were "Qualified Home Health Care Providers." As of April 2011, the care
providers other than Linda Davis and Lorrie Watters were, purportedly, certified nursing
assistants ("CNAs"). Bankers' statement that they would reimburse plaintiff for caregivers with
qualifications "at least equal to those held by Ms. Davis and Ms. Watters" would, then, clearly
cover reimbursement for the services of these providers. Moreover, if plaintiff did believe that
the terms of the settlement were unclear, he could have asked for clarification regarding
coverage for the other caregivers or proposed a more precise settlement offer.
ORS § 20.075(1)(f) requires the court to consider the "objective reasonableness of the
parties and the diligence of the parties in pursuing settlement of the dispute." In this case,
Bankers' settlement offer was reasonable. It provided coverage for Katherine Fallow's
caregivers through the settlement date, and did not preclude plaintiff from seeking attorney fees

Page 8- ORDER

and costs. Plaintiffs failure to respond to Bankers' settlement offer was unwarranted, and
resulted in several years of litigation and fee request more than double the amount of the
judgment.

V.

ORS § 20.075(l)(g)
Plaintiff does not seek a prevailing party fee.

VI.

ORS § 20.075(1)(h)
Factor (h) authorizes the court to consider other appropriate circumstances. Bankers

contends that the court should consider the reasonableness of the requested fees due to plaintiffs
practice of block billing. Block billing in this district is "any single time entry of three or more
hours containing four or more tasks, or containing only two tasks where one of the tasks could
have taken from a small to a substantial period of time." Orme v. Burlington Coat Factory of
Or., LLC, No. CV 07-859-MO, 2010 WL 1838740, at *6, n. 3 (D.Or. May 3, 2010). In its
"Message from the Court Regarding Fee Petitions," the district cautions attorneys against block
billing as it prevents the court from properly assessing the reasonableness of the fees. See
http://www.ord.uscourts.gov/index.php/court-policies-517/fee-petitions (last updated February 6,
2013). To prevent block billing, the District "recommends that members of the bar record time
spent on particular, individual tasks and support their fee petitions with a level of documentation
that allows the Court, and opposing counsel, to adequately review the reasonableness of the time
spent on a single task." Id. Having carefully reviewed the time entries from plaintiff, the court
finds that plaintiff has over one hundred hours of time entries that meet this district's definition
of block billing, for fees totaling $19,760.50. 3 The court reduces these fees by 50%, for a total
reduction of $9,880.25.

3

See entries dated 9/8/10, 9/9/10, 3/2/11, 3/11 /II, 8/16111, 8/17111, II /3/11, 2/21/12, 3/27112, 3/29112, 6/13/12,
7/11/12, 7/13/12, 7/25/12, 8/16/12, 9f4112, 9112112, 9/13/12, 9/14/12, 11/8/12, 11/19/12, and 11/20/12.
Page 9 - ORDER

The court also agrees with Bankers that many of plaintiffs entries are not adequately
detailed. The "Message from the Court Regarding Fee Petitions" also cautions against "time
billed for items such as 'conference,' 'telephone call with ... ', or 'correspondence to ... ' with no
description of the subject of the conference, the call, or the correspondence." The court notes
that a number of entries meet this description. On October 7, 2010, for example, attorney Chris
Cauble billed 1.5 hours, for a cost of $375, for "Telephone conference with opposing party;
Letter from Same; Conference with Legal Assistant." Cauble Aff., Ex. 1, p. 1. The court cannot
assess the reasonableness of entries such as this when the subject of the work is not identified.
The court notes 33 instances of vague entries similar to the one described, for a total of 19.18
hours at a cost of $4,598.50. 4 The court also reduces these fees by 50%, for a total reduction of
$2,229.25.
Bankers also argues that some of plaintiffs entries are redundant. Attorneys from one
firm who conference together may not both charge the client for their time. See West Linn
Corporate Park, LLC v. City of West Linn, No. CV-01-1787-HZ, 2011 WL 4708774, at *13.
That is,"[ w]hen attorneys hold a telephone or personal conference with another attorney or
paralegal, good 'billing judgment' mandates that only one participant in the conference should
bill the conference to the client." Nat' I Warranty Ins. Co. v. Greenfield, No. CV -97-1654-ST,
2011 WL 34045734, at *5 (D.Or. Feb. 8, 2001). As Bankers points out, there are at least four
occasions where plaintiffs counsel double-billed for speaking with one another, for a minimum
of overlapping fees of $600. 5

4

See entries dated 10/7/10,10/11/10, 12/9/10, 1/20/11,2/24/11,4/19/11,5/5/11,7/1/11,7/11/11,7/13/11,7/21/11,
8/30/11,9/22/11,9/27/11, 10/6/11, 11/9/11, 11128/11, 11/29/11, 1/3/12,6/6/12,6/28/12,7/17/12 (two entries),
10/8/12, 10/10/12, 10/24/12, 11/7/12, 11/20/12, 12/11/12,2/1/13,4/9/13, and 7/2/13.
5
See entries dated 8/1/11, 7/23/12, 9/14/12, and 10/3/12.
Page I 0- ORDER

VII.

ORS § 20.075(2)(a)-(b)

Plaintiffs' time is not well-documented, and the court questions whether litigation should
have proceeded after Bankers' April 2011 settlement offer. However, with the exception ofthe
time spent on plaintiffs bad faith claim, the court finds that plaintiffs time was reasonable on
the whole. While this was a fairly representative insurance contract dispute, it did require
substantial work from plaintiff. The court finds that plaintiff generally handled the difficulty of
the questions well and had the skills needed to properly perform the legal services.
The court does find, however, that some entries by plaintiffs counsel's legal assistants
should be excluded from the award. "[T]asks that are secretarial or clerical in nature, such as
proofreading, indexing, or assembling documents, are not compensable because they are
overhead and thus already 'reflected in the hourly billing rate."' Old W. Fed. Credit Union v.
Skillman, No. 2:11-CV-01170-SU, 2012 WL 4594256, at *4 (D.Or. Sept. 6, 2012) (citing
Frevach Land D. v. Multnomah Cnty., Dep't ofEnvtl. Servs., 2011 WL 34039133, at* 12 (D.Or.
Dec. 18, 2011)), adopted by 2012 WL 4509989 (D.Or. Oct. 1, 2012). Here, many ofthe legal
assistants' entries contain work that was clerical, such as preparing correspondence. The court
accordingly reduces the fee award by $1,114. 75, which reflects entries for clerical tasks. 6

VIII. ORS § 20.075(2)(b)
Because there is no evidence that this case precluded plaintiffs' attorney from taking
other work, this factor does not weigh in the court's decision.

IX.

ORS § 20.075(2)(c)
The party seeking fees has the burden to show "the requested rates are in line with those

prevailing in the community for similar services of lawyers of reasonably comparable skill and

6

See entries dated 7/2111 I, 8/8112,8/9/12,8/16/12, 10/2/12, 10/5/12, 12/4/12,6/27/12, and 7/2/13. Several other
entries involved clerical tasks, but were previously excluded as block billing.
Page II -ORDER

reputation." Jordan v. Multnomah Cnty., 815 F.2d 1258, 1263 (9th Cir. 1987). "Affidavits of
the plaintiffs' attorney and other attorneys regarding prevailing fees in the community, and rate
determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are
satisfactory evidence of the prevailing market rate." United Steelworkers of Am. v. Phelps
Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). The initial benchmark for attorney rates in this
court is the Oregon State Bar ("OSB") Economic Survey. Sterling Sav. Bank v. Sequoia
Crossing, Civ No. 09-55-AC, 2010 WL 3210855, at *8 (D.Or. Aug. 11, 2010) (citation omitted).
The most recent OSB Survey is from 2012.

For work done in 2013, the rate of inflation from

2012 to 2013 is one percent. Oregon Realty Co. v. Greenwich Inc. Co., No.3: 12-cv-00200-MO,
2013 WL 3287092, at *4 (D.Or. June 28, 2013). The average rate provides a starting point,
which may be a_djusted to account for factors such as experience, reputation, and the ability of
the attorney performing the service. Id., citing ORS § 20.075(2)(g).
In this case, the court questions the support for the hourly rate of attorney Rachele Selvig.
Ms. Selvig was admitted to the Oregon state bar in October of 2009 and to the U.S. District
Court for the District of Oregon in 2010. Bolen Decl. in Resp. to Mot., p. 4. Using the OSB
survey, the average state-wide hourly billing rate for an attorney with between zero and three
years of experience is $156. Regionally, the average rate for attorneys with this amount of
experiences varies, from $128 for an attorney in the Lower Valley on the lower end to $182 for
an attorney in Portland on the higher end. 7 Ms. Selvig seeks $200 per hour for her work.
Plaintiffs provides the declaration of Christopher Cauble in support of the hourly rate, which
states that "[b ]illing for attorney Rachele Selvig was at the higher end of the Oregon percentile
range for attorneys in practice 0-3 years based on her significant professional experience before

7

The hourly rate for a southern Oregon attorney with zero to three years of experience is not listed in the OSB
Survey.
Page 12- ORDER

entering the practice oflaw." Cauble Aff. in Supp. of Mot, p. 3. The affidavit does not,
however, describe Ms. Selvig's prior professional experience or how it contributed to her work
on this case. Bankers has provided an affidavit from Medford attorney Charles Bolen, which
states that $200 for an attorney in southern Oregon with no more than three years of experience
is an unreasonable rate and that $156 "would be more in line with what is seen in Southern
Oregon." Bolen Dec!. in Resp. to Mot., p. 4. Mr. Bolen also notes that the present case is Ms.
Selvig's first litigated case in the U.S. District Court for the District of Oregon. Id.
The court does not question Ms. Selvig's competence or the reputation of the Cauble &
Cauble firm, but agrees with Bankers that plaintiff has not met its burden of providing an
explanation for such a substantial deviation from the base rates that the OSB Survey provides for
attorneys with commensurate experience. Accordingly, the court determines that an hourly rate
of $175 is appropriate for Ms. Selvig. Calculating Ms. Selvig's hourly rate at $175/hour, 8 the
court reduces Ms. Selvig's billed time by $3,664.75.
X.

ORS § 20.075(2)(d)

Here, plaintiff originally sought $500,000 in economic damages, non-economic damages
of$500,000, and punitive damages of$5 million. Plaintiffultimately obtained a settlement of
$40,230.23, representing less than one percent of the recovery originally sought. While plaintiff
is the prevailing party, its success was limited in light of his original request.

XI.

ORS § 20.075(2)(e)-(h)

Neither party has provided evidence related to factors (e), (f), and (h). The court finds
factor (g) to be neutral.

8

The court calculated Ms·. Selvig's rate for 146.58 hours of work, which does not include hours reduced for block
billing, vague entries, or work related to the bad faith and fraud claims.
Page 13- ORDER

XII.

Summary

The court reduces plaintiff's requested award of$101,673.25 by $4,556 for additional
time spent on unsuccessful claims, $8,880.25 for block billing, $2,229.25 for entries where the
subject ofthe work is not specified, $600 for double-billing, $1,114.75 for clericaltasks, and
$3,664.75 for a reduction in Ms. Selvig's hourly rate. The court finds that a further reduction of
40%, or $34,045.70, is appropriate due to plaintiff's rejection of Bankers' reasonable settlement
offer and plaintiff's limited success in light of his initial demand.

CONCLUSION
For the foregoing reasons, plaintiff's motion for attorney fees (#93) is granted in part and
denied in part. The court awards fees in the amount of$51,068.55.
IT IS SO ORDERED.

MARK D. CLARKE
United States Magistrate Judge

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