Muller et al v. Country Mutual Insurance Company

Filing 301

OPINION AND ORDER: For the reasons stated above, I GRANT in part and DENY in part the Mullers' Motion for Attorney Fees 266 . I grant $1,367,466.44 in attorney fees, $7,000 in expert fees, $8,491 as previously awarded by Judge Brown, and $30,908.91 in costs, as shown in Appendix A to this opinion. Signed on 12/8/2017 by Judge Michael W. Mosman. (kms)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

STEPHEN MULLER and
RENA MULLER,
No. 3:14-cv-01345-MO
Plaintiffs,
OPINION AND ORDER
v.

COUNTRY MUTUAL
INSURANCE CO.
Defendant.

MOSMAN,J.,
This matter comes before me on Plaintiffs Rena and Stephen Muller's ("the Mullers")
Motion for Attorney Fees [266]. For the reasons stated below, I GRANT in part and DENY in
part the Motion.

BACKGROUND
This case arises out of a fire in 2012, in which the Mullers' house, business (machine
shop), and 1967 Mustang were all damaged. After investigation, Country Mutual denied the
Mullers' claim, concluding that the Mullers had intentionally started the fire. The Mullers
brought suit in August 2014 and sought recovery for breach of express contract. 1 [ 1].

1

The Mullers originally brought a claim for breach of the implied covenant of good faith and fair dealing,
but voluntarily dismissed this claim before trial.

1 - OPINION AND ORDER

Their claims culminated in an eight-day jury trial in June 2017. The jury found for the
Mullers on their breach of contract claim and awarded damages of $1,082,500. [246]. These
damages include $186,000 in damages related to structures, $570,000 in damages related to
business property, $256,500 in damages related to personal property, $25,000 in damages related
to business income, and $45,000 in damages related to automobiles. [246].
The Mullers seek: (1) an award of prejudgment interest in the amount of $428,290.63,
plus the daily rate through entry of judgment; (2) $1,175,568.49 in attorney fees, supplemental
fees of $33, 146.25 incurred to respond to the Motion for a New Trial and for the reply, $8,000 in
expert fees, plus a 2.0 multiplier; and (3) $31,076.29 in costs.

DISCUSSION
I.

Prejudgment Interest
The Mullers seeks an award of prejudgment interest in the amount of$428,290.63.

Motion [266] at 2. Country Mutual does not dispute that the Mullers are entitled to prejudgment
interest but disagrees with the Mullers about the date prejudgment interest began to accrue.
Response [284] at 2-3.
Oregon Revised Statute Section 82.010, which governs prejudgment interest in this case,
allows for prejudgment interest at a rate of"nine percent per annum [that] is payable on [a]ll
moneys after they become due." O.R.S. § 82.010(1). "Prejudgment interest is proper when the
exact amount owing is ascertained or easily ascertainable by simple computation or by reference
to generally recognized standards and where the time from which interest must run can be
ascertained." Gerber v. O'Donnell, 724 P.2d 916, 918 (Or. Ct. App. 1986). "Oregon courts
[have] adopted an approach where prejudgment interest is appropriate notwithstanding that a
defendant disputed liability and the jury did not award plaintiff all the damages it sought or
where 'damages are not ascertainable until issues of fact have been decided by the jury.'"
2 - OPINION AND ORDER

Precision Seed Cleaners v. Country Mut. Ins. Co., 976 F. Supp. 2d 1228, 1258 (D. Or. 2013)

(quoting Strader v. Grange Mut. Ins. Co., 39 P.3d 903, 909 (Or. Ct. App. 2002)).
This Court determined in Precision Seed Cleaners that losses from a fire became
ascertainable on the date the Mullers submitted proof ofloss to the defendant insurance
company. Id. at 1264. Pursuant to O.R.S. § 742.238, which requires fire insurers to pay for
covered losses within sixty days after proof of loss, the Court concluded the "due date" for the
money was sixty days after the proof of loss was submitted. Precision Seed Cleaners, 976 F.
Supp. 2d at 1264; O.R.S. § 742.238 ("A fire insurance policy shall contain a provision as
follows: 'The amount of loss for which this company may be liable shall be payable 60 days
after proof of loss, as herein provided, is received by this company and ascertainment of the loss
is made either by agreement between the insured and this company expressed in writing or by the
filing with this company of an award as herein provided."'). Based on Precision Seed Cleaners,
the Mullers argue that prejudgment interest began to accrne sixty days after the Mullers reported
the amounts of loss to Country Mutual, Motion [266] at 3-4, and I agree.
Country Mutual's arguments to the contrary are unpersuasive. Country Mutual argues
that prejudgment interest did not begin to accrue until the date of the verdict: because the Court
excluded the Mullers' proof of loss from trial, "there was no clarity as to the amount of
damages" until trial. Response [284] at 2-3. But this argument does not comport with Strader
and other Oregon decisions which hold that "although there are questions of fact about the
amounts owed, that does not mean that defendant did not owe sums certain at dates certain."
Strader, 39 P.3d at 909 (quoting Hazelwood Water Dist. v. First Union Mgmt., 715 P.2d 498 (Or.

Ct. App. 1986)). Country Mutual also argues the damages were not ascertainable until the verdict
because the Court excluded the proof ofloss from trial. But the Court excluded the proof ofloss

3 - OPINION AND ORDER

based on hearsay and failure to disclose [223, 250], not because the amounts were
unascertainable, and other proof of damages was introduced at trial. In the alternative, Country
Mutual argues that the accrual date was six months after proof of loss was submitted on June 27,
2013, based on an Oregon statute on attorney fees in insurance cases. Response [284] at 2-3.
However, Country Mutual does not provide any cases in support of its proposition that the statute
on attorney fees also governs prejudgment interest, and I agree with the Mullers that the Court
should follow Precision Seed Cleaners and calculate the prejudgment interest from an accrual
date of sixty days after the proof of loss.
But I disagree with several of the Mullers' calculations of accrual dates and prejudgment
interest. The Mullers calculate that prejudgment interest began to accrue on the following dates:
January 20, 2013 (structure, business property, and business income losses); February 2, 2013
(automobile losses); and August 27, 2013 (personal property losses). Motion [266] at 3-4. With
the exception of the personal property losses, none of the other accrual dates proposed by the
Mullers are based on the date the sworn proof ofloss was submitted. O.R.S. § 742.238 states that
[A] fire insurance policy shall contain a provision as follows: 'The amount ofloss
for which this company may be liable shall be payable 60 days after proof of loss,
as herein provided, is received by this company and ascertainment of the loss is
made either by agreement between the insured and this company expressed in
writing or by the filing with this company of an award as herein provided.
O.R.S. § 742.238 (emphasis added). 2 The policies in this case required a sworn proof of loss,
which was submitted on June 27, 2013. [93, 150-3].
I therefore calculate prejudgment interest for the entire amount from sixty days after June
27, 2013 and grant prejudgment interest in the amount of $386,563.40.

2

The Oregon Supreme Comt has concluded that "proof of loss," as used separately in O.R.S. § 742.061,
need not be written or signed. Parks v. Farmers Ins. Co. of Or., 227 P.3d 1127, 1131 (Or. 2009). But the
Court specifically noted that state law addressing fire insurance (presumably O.R.S. § 742.238) imposes
more detailed proof of loss requirements. Id.

4 - OPINION AND ORDER

II.

Attorney Fees
A. Entitlement to attorney fees
Oregon law governs whether attorney fees are available in this case. Northan v. Rule, 637

F.3d 937, 938 (9th Cir. 2011) ("State laws awarding attorneys' fees are generally considered to
be substantive laws under the Erie doctrine .... "). The parties do not dispute that the Mullers are
entitled to attorney fees under 0.R.S. § 742.061. Under O.R.S. § 742.061, the Court "shall"
award attorney fees if: (1) the Mullers submitted proof of loss; (2) Country Mutual did not settle
within six months of the proof ofloss; (3) the Mullers filed a lawsuit; and (4) the Mullers'
recovery "exceeds the amount of any tender made by the defendant in such action." O.R.S. §
742.061(1 ). Here, the Mullers meet each of these criteria: they submitted proof of loss on June
27, 2013; Country Mutual did not settle within six months; the Mullers filed a lawsuit; and
Country Mutual never offered more than $600,000 to settle, but the Mullers recovered over $1
million at trial.
B. Amountoffees
Oregon courts generally award attorney fees based on the lodestar method, under which
courts multiply the reasonable number of hours spent on the case by a reasonable hourly rate. See
O.R.S. § 20.107(2); Strawn v. Farmers Ins. Co. of Or., 297 P.3d 439, 447-48 (Or. 2013)
("Strawn I"). The lodestar may be adjusted based on the factors specified in O.R.S. § 20.075.
Alexander Mfg., Inc. Employee Stock Ownership & Tr. v. Ill. Union Ins. Co., 688 F. Supp. 2d
1170, 1181 (D. Or. 2010). O.R.S. § 20.075 requires courts to undetiake a two-pati inquiry when
assessing the amount of attorney fees to be awarded in a case such as this one where attorney
fees are required by statute. O.R.S. § 20.075. First, the Court must consider:

5 - OPINION AND ORDER

(a) The conduct of the patties 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.
(e) The objective reasonableness of the 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 O.R.S.
20.190.
(h) Such other factors as the court may consider appropriate under the
circumstances of the case.
O.R.S. § 20.075(1). Second, the Court must consider:
(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.
O.R.S. § 20.075(2).
The Mullers seek $1,175,568.49 in attorney fees, supplemental fees of$33,146.25
incurred to respond to the Motion for a New Trial and for the Reply in suppmt of their Motion

6 - OPINION AND ORDER

for Attorney Fees, $8,000 in expert fees, and a 2.0 multiplier.3 Reply [291] at 10. Defendants
argue the Court should reduce the requested award because the hourly rates for the Mullers'
counsel are excessive, the record shows duplicative and redundant billing, and Country Mutual's
conduct was appropriate in this case. Response [284].

1. Subsection (1) factors
The Mullers argue that the applicable factors of subsection (1) weigh in favor of granting
their requested attorney fees. In particular, the Mullers argue the conduct of Country Mutual and
its attorneys under factors (a), (b), (d), (e), and (f) weighs in their favor. The Mullers offer
examples of Country Mutual's allegedly bad conduct. These include refusing to pay for the fire
loss, falsely accusing the Mullers of arson, failing to tell the Mullers it suspected arson until after
its investigation was complete and the scene was destroyed, and refusing to settle. Motion [266]
at 10, 12. Country Mutual argues it was allowed to investigate the cause of the fire and followed
standard industry practices in so doing, and that it consistently participated in settlement
discussions. Response [284] at 6-7, 9.
As to litigation conduct, the Mullers argue Country Mutual and its attorneys (1) did not
prepare its representatives to testify; (2) withheld documents; (3) did not specifically identify its
experts' opinions; (4) filed a Motion to Certify or Reconsider the Court's grant of summary
judgment to the Mullers on one of Country Mutual's affirmative defenses; (5) infmmed the
Court before the trial began that it intended to file an appeal after trial; (6) used an expert opinion
Country Mutual had earlier disclaimed; (7) required the Mullers to authenticate videotape
evidence; (8) presented defenses that were umeasonable because law enforcement refused to
press charges for arson; (9) attempted to introduce inadmissible evidence and arguments in its
3

The Mullers originally asked in their Motion for $1,221,880.24 plus a 2.0 multiplier, but note in the
Reply they failed to properly take a 15% deduction from one law firm's fees. Reply [291] at 10.

7 - OPINION AND ORDER

closing statements; and (10) contacted Mr. Muller's daughter post-trial. Motion [266] at 5-6,
10-12. The Mullers note this Court previously awarded fees against Country Mutual to deter it
and other insurers from similar conduct. Motion [266] at 10 (citing Beck v. Metro. Prop. & Cas.

Ins. Co., No. 3: 13-CV-00879-AC, 2016 WL 4978411 (D. Or. Sept. 16, 2016)). Country Mutual
argues the Mullers inappropriately attack Country Mutual's attorney, Dan Thenell, and that their
arguments are not relevant to the fee petition. Response [284] at 8. Country Mutual further
argues its defenses were reasonable and it was proper to assert issues of appeal. Response [284]
at 6-7.
I find the majority of allegedly bad conduct of Country Mutual and its attorneys was
aggressive but not unreasonable. For example, it was appropriate for Country Mutual to
investigate the fire, pmticipate in settlement discussions (and offer as much as $600,000 to
settle), present defenses based on evidence and its policy, and seek out new evidence after trial.
On the other hand, I note that Judge Brown already concluded in this case that Country Mutual
failed to adequately prepare its corporate designee and awarded attorney fees on the matter. [91].
I conclude the applicable subsection ( 1) factors are relevant in my decisions (1) whether
the number of hours spent on this litigation was reasonable and (2) whether to grant a multiplier,
which I discuss in detail below.

2. Subsection (2) factors
The three main factors at issue here are the contingent or fixed nature of fees, the
submitted hours, and the requested hourly rates. That the Mullers received more in damages at
trial than they had originally asked for is also relevant. The other factors do not affect my
analysis.

8 - OPINION AND ORDER

a) Subsection (h): whether the fee of the attorney is fixed or
contingent.
The Mullers retained their first attorney, Mr. Bonaparte, on a contingent basis prior to
filing suit, but then entered into a fixed hourly rate agreement from August 2014-2015. Motion
[266] at 14. In August 2015, the Mullers and their attorneys again entered into a contingency
agreement. Motion [266] at 14. Country Mutual argues there was a low risk that Plaintiffs would
not be fully compensated. Response [284] at 10. In Precision Seed Cleaners, this Court
concluded that "while Plaintiff took the case on a contingency basis, once six months passed
without a settlement offer of any kind from Defendant, Plaintiff knew that if it settled for any
amount whatsoever, it would be entitled to attorney fees under O.R.S. 742.061, reducing the
impact of the contingent nature of the case." Precision Seed Cleaners, 976 F. Supp. 2d 1 at 1243.
I similarly conclude this factor does not weigh in either party's favor.

b) Subsection (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.
The Mullers argue this case is not "exceptionally complex" but was instead made
unnecessarily expensive by Country Mutual's conduct. Motion [266] at 12. The three law firms
involved in this case submitted a total of3718.15 hours of billed time (prior to the Motion for
Attorney Fees) over the almost four years spent on this case. Jonas Ricker's law firm submitted
70.4 hours; Maloney Lauersdorf & Reiner submitted 2831.65 hours (including the 30.9 hours
included in Judge Brown's award), and Bonaparte's law firm submitted 816.1 hours. [267-8,
267-9, 278-1, 269].
The Mullers reduced the hours submitted by the Bonaparte and Maloney law firms by
15% to account for redundancies. Motion [266] at 12. The Mullers did not discount the 70.4
hours submitted by Jone! Ricker's law firm and do not give an explanation. Reply [291] at 10.
9 - OPINION AND ORDER

Country Mutual argues the Mul!ers incurred excessive and duplicative fees because they
employed six attorneys and numerous paralegals at three different law firms, billed for
administrative tasks, and included fees already awarded. Response [284] at 10. I address Country
Mutual's four specific objections and one additional issue below.
i.

Anthony Reiner's hours

In the Motion for Attorney Fees, the Mullers do not address or ask for fees for the work
done by Anthony Reiner, but 8.5 hours of his work are included in their attorney fee calculations.
I suspect Anthony Reiner is a named partner at Maloney Lauersdorf & Reiner, but the Mullers
put forth no evidence of his background, skills, or reasonable hourly rates, or even any evidence
that he is an attorney. See, e.g., LauersdorfDecl [267]; McDermott Deel. [271]. I deduct 8.5
hours from the total hours requested for this reason.

ii.

Country Mutual's objections

Country Mutual objects to 888.3 hours4 claimed in the fee petition. Their objections may
be categorized as follows:
•
•
•
•

Intra-office communications. Response [284] at 13 (citing to 267-8, 267-9, 278-1).
Duplicative, redundant, or excessive hours. Response [284] at 14 (citing to 267-8, 267-9).
Fees already awarded by Judge Brown. Response [284] at 14.
Administrative tasks. Response [284] at 15.
The Mul!ers respond that they have already accounted for redundancies by reducing their

fees by 15% and that 135.5 of the hours Country Mutual objects to have already been deducted
as a "no charge" time entry. Reply [291] at 6. As an initial note, the Mullers are correct they did
not charge for many of the hours Country Mutual objects to in their billed hours. I address each
of these objections in turn.
4

In its Response [284], Country Mutual calculates that it objects to 971.5 hours, but the supporting
affidavit from Dan Therrell objects to 888.3 hours.

10 - OPINION AND ORDER

a. Intra-office communications
Country Mutual objects to intra-office communications between the three law firms
involved in this case. "A patty is certainly free to hire and pay as many lawyers as it wishes, but
cannot expect to shift the cost of any redundancies to its opponent." Ash Grove Cement Co. v.
Liberty Mui. Ins. Co., No. 3:09-CV-00239-HZ, 2014 WL 837389, at *5 (D. Or. Mar. 3, 2014),
qff'd, 649 F. App'x 585 (9th Cir. 2016) (citations omitted). "Generally, when attorneys hold a

telephone or personal conference, good 'billing judgment' mandates that only one attorney
should bill that conference to the client, not both attorneys." Precision Seed Cleaners, 976 F.
Supp. 2d at 1252 (citation and internal quotation marks omitted); see also Welch v. Metro. Life
Ins. Co., 480 F.3d 942, 949 (9th Cir. 2007) (upholding district court's finding under federal law

that intra-office conferences were "unnecessary and duplicative"). Some comis have strictly
applied this rule, concluding that "in general, two attorneys cannot bill for communicating with
each other, as such time is duplicative and unnecessary." Tarango v. City ofBakersfield, No.
1:16-CV-0099-JLT, 2017 WL 5564917, at *11 (E.D. Cal. Nov. 20, 2017) (applying federal and
California law).
County Mutual objects to two general types of communications between attorneys:
preparation and review of conespondence to co-counsel, and attorney conferences. By my count,
there are 28. l hours of billed time for preparation and review of correspondence to co-counsel.
In my mind, this is not excessive for a case with over 3600 hours of billed time, and I do not
deduct this time. There are also 88.2 hours of billed time for attorney and/or legal staff
conferences, but only 65.2 hours are double-billed. I therefore deduct 32.6 hours for doublebilled meetings from the submitted hours of all attorneys and staff except Robe1i Bonaparte, the
attorney with the highest hourly rate. See Precision Seed Cleaners, 976 F. Supp. 2d at 1252.

11 - OPINION AND ORDER

b. Duplicative, redundant, or excessive hours
Country Mutual objects to other hours billed for duplicative or excessive work. In
particular, Country Mutual objects to the combined trial preparation and attendance of
Lauersdorf, Maloney, Scott McLaren, Anthony Reiner, and paralegals Katie Walsh and Cher
Vasquez. But Lauersdorf and Maloney both substantively paiiicipated in the trial, Reiner's time
was not billed, MacLaren's time was billed at a paralegal rate, and only one paralegal attended
the trial at a time. I therefore do not deduct any hours billed for trial.
In addition, Country Mutual objects to 557.9 hours of duplicative and/or excessive work

other than the meetings and correspondence discussed above. But that number of hours is
relatively close to a 15% reduction in total hours (approximately 543 hours). I will therefore
impose a 15% reduction on the hours of Jone! Ricker's law finn, because the Mullers did not
already do so, and do not otherwise reduce the hours for duplicative or excessive work.

c. Hours for fees already awarded
Country Mutual objects to the hours submitted that were already included in Judge
Brown's Order on attorney fees arising out of a Rule 30(b)(6) dispute [91]. The Mullers respond
that they included these hours so as to be part of the final judgment and that some of them are
"no charge" hours.
Judge Brown awarded the following fees:

Attorney

Hours

Rate

Fees

Andy Lauersdorf

9.1

$350

$3,185

FJMaloney

5.2

$350

$1,820

Scott MacLaren

16.6

$210

$3,486

TOTAL

30.9

12 - OPINION AND ORDER

$8,491

To ensure there is no confusion, I include these 30.9 hours as a separate category in the judgment
and deduct these hours from this order.

d. Administrative tasks
Country Mutual objects to time billed for clerical tasks. "Tasks which are clerical in
nature are not properly billed as attorney fees but are overhead expenses absorbed by counsel."

Precision Seed Cleaners, 976 F. Supp. 2d at 1251. "Tasks considered clerical include, but are not
limited to, filing motions with the court, filling out and printing documents, preparing affidavits
and drafting certificates of service, organizing files, calendaring dates, rescheduling depositions,
and sending documents." Sterling Sav. Bank v. Sequoia Crossing, LLC, No. 03 :09--cv-00555AC, 2010 WL 3210855, at *7 (D. Or. Aug. 11, 2010). Oregon courts generally only allow the
costs of daily trial transcripts to be awarded under costs, not under attorney fees. See Masood v.

Safeco Ins. Co. of Or., 393 P.3d 277, 279 (Or. 2017) (addressing costs of daily trial transcripts
under Oregon law on allowable costs).
I deduct 31.5 hours for administrative tasks, which consists of 6.7 hours for scheduling,
12.8 hours for organizing files, and 12 hours for a paralegal to record trial testimony and provide
transcripts.
In summary, I deduct 32.6 hours for double-billed hours, 31.5 hours for administrative
tasks, and 30.9 hours already included in Judge Brown's hour (although these hours are included
in the final judgment). This leaves a remainder of 3613.85 hours (prior to the 15% reduction).

c) Subsections (c) and (g): the fee customarily charged in the locality
for similar legal services and the experience, reputation and ability
of the attorney performing the services.
"As a benchmark for comparing an attorney's billing rate with the fee customarily
charged in the locality, this Court uses the most recent Oregon State Bar (OSB) Economic
13 - OPINION AND ORDER

Survey." Precision Seed Cleaners, 976 F. Supp. 2d at 1244. "If the rate requested exceeds the
average rate reported in the OSB Survey, the burden is on the prevailing party to justify that
higher rate. Even when such justification is present, the court usually limits the hourly rate to the
75thpercentile of the OSB Survey." Prison Legal News v. Umatilla Cty., No. 2:12-CV-01101SU, 2013 WL 2156471, at *4 (D. Or. May 16, 2013) (citation omitted).
The Mullers seek the following hourly rates for their attorneys and legal staff:
Position

Hourly Rate (April
2014 through
August 2015)

Robert Bonaparte

Attorney

$375/$450

$450

Andrew C. Lauersdorf

Attorney

$375

$450

Francis J. Maloney

Attorney

$375

$450

Janis C. Puracal

Attorney

$275

$300

Scott MacLaren

Attorney

$185

$250

Janel Ricker

Attorney

$210 through 2013,
$225 thereafter

$225

Brooke Calcagno

Paralegal

$120

$150

Cher Vasquez

Paralegal

$120

$150

Katie Welsh

Paralegal

$120

$150

Robin Lister

Legal Assistant

$95

$95

Nadya Okamoto

Legal Assistant

$100

$100

Isabelle Zheng

Legal Assistant

$100

$100

Janet Stowell

Legal Assistant

$35-60

$35-60

Logan Joseph

Law Clerk

$50

$50

Attorney

$375

$150

Name

Anthony Reiner

Hourly Rate
(September 2015
through present)

LauersdorfDecl. [267], Ex. Sb at 173; Bonaparte Deel. [268] at 8; Joseph Deel. [269]. The
Mullers argue the hourly rates of their attorneys are reasonable, based on the Oregon State Bar
2012 Economic Survey, opinions from other attorneys in the area, and the opinions of the
14- OPINION AND ORDER

attorneys involved in this case. Motion [266] at 8-9. Country Mutual specifically objects to the
requested rates for Mr. Lauersdorf, Mr. Maloney, and Mr. MacLaren. I address each of these
requested rates and Country Mutual's objections below.

a. Robert Bonaparte
Mr. Bonaparte has thirty-five years of private practice experience, has expertise in
insurance coverage cases, and is licensed to practice in Oregon, New York, and the District of
Columbia. Bonaparte Deel. [267], Ex. B, at 1. His current hourly rates range from $375 to
$450/hour. Bonaparte Deel. [267], Ex. B, at 1. It is not entirely clear what his requested hourly
rate is: in the Motion for Attorney Fees, the Mullers request $375/hour through August 2015, and
$450/hour after August 2015 for Mr. Bonaparte's work, but Mr. Bonaparte's declaration appears
to calculate his requested fees based on a $450/hour rate for the entire time. Motion [266] at 8;
Bonaparte Deel. [268] at 8. In support of this hourly rate, the Mullers submit an affidavit from
Mr. Bonaparte and an expert declaration. The Mullers' attorney fees expert, James T.
McDermott, submits that Mr. Bonaparte's requested hourly rate is reasonable based on his
experience and skill. McDermott Deel. [271] at 6. ("Based primarily on Mr. Bonaparte's
longstanding expe1tise, reputation, experience, and skill in litigating insurance coverage cases, I
opine that his requested hourly rate of $450 is reasonable."). Country Mutual does not appear to
object to Mr. Bonaparte's requested hourly rates. 5
But I find a rate of $375/hour for Mr. Bonaparte's work in this case to be reasonable. The
2012 OSB Survey lists an average salary of $340 for attorneys in the Portland area with over 30

5

Country Mutual's Response states "Despite Judge Brown's order, Plaintiffs again request
$375/hour through August 2015 and $450/hour after August 2015 for Attorneys Bonaparte,
Lauersdorf, and Maloney." Response [284] at 6. Judge Brown's order did not address Mr.
Bonaparte's work or hourly rates, so Country Mutual's implication is unclear. See [266].
15 - OPINION AND ORDER

years of experience. OSB 2012 Economic Survey,
https://www.osbar.org/_ docs/resources/econsurveys/12economicsurvey .pdf. Mr. Bonaparte
states that he charges $375-$450/hour. Bonaparte Deel. [267]. The requested hourly rate of$375
would put Mr. Bonapa1ie above the average hourly rate for attorneys in Portland, and his
$450/hour requested rate exceeds the 75th percentile ($400/hour) for attorneys in Portland with
similar experience. Id.; see Prison Legal News, 2013 WL 2156471, at *4 (stating this court
usually limits rates to the 75th percentile of the OSB Survey, even where justified). For these
reasons, I find a $375 hourly rate to be reasonable for Mr. Bonapatie's work in this case.

b. Andrew Lauersdorf, Francis J. Moloney, and Scott
MacLaren.
Mr. Lauersdorfwas admitted to the Oregon State Bai· in 1995 and has approximately 16
years of experience litigating insurance coverage disputes; Mr. Maloney was admitted to the
Oregon State Bar in 1998 and has approximately 17 years of experience litigating insurance
coverage disputes; and Mr. MacLaren was admitted to the Oregon State Bar in 2012 and has
approximately five years of experience. LauersdorfDecl. [267] at 3, 5, 7. The Mullers request
rates of $375/hour through August 2015, and $450/hour after August 2015 for Mr. Lauersdorf
and Mr. Maloney, and $185/hour through August 2015, and $250/hour after August 2015 for Mr.
MacLaren. Motion [266] at 8. The Mullers' expeti opines that these are reasonable rates for
attorneys with comparable experience and skills. McDermott Deel. [271] at 4, 7.
In September 2016, Judge Brown addressed similar requested rates for these three
attorneys in this case and found reasonable $350 as an hourly rate for Lauersdorf and Maloney,
and $210 as an hourly rate for MacLaren. Opinion & Order [91] at 8-9. The Mullers argue Judge
Brown's decision did not take into account an anomaly in the OSB Survey rates that reflects
lower rates for attorneys with 16-20 years of experience than for attorneys with 7-15 years of
16 - OPINION AND ORDER

experience. Motion [266] at 8. But Judge Brown awarded fees higher than the averages listed in
the 2012 OSB Survey, which lists an average salary of $312 for attorneys in the Po1iland area
with 13-15 years experience, $256 for those with 16-20 years experience, and $326 for those
with 21-30 years experience. OSB 2012 Economic Survey. I conclude the rates Judge Brown
awarded are reasonable for attorneys with this many years of experience and in this patiicular
case, and I also find reasonable hourly rates of $350 for Mr. Lauersdorf and Mr. Maloney, $210
for Mr. MacLaren after August 2015 (and Mr. MacLaren's requested rate of$185 prior to
August 2015).
c. Janis C. Puracal
Ms. Puracal was admitted to the Oregon State Bar in 2013, but worked in Washington
prior to her work in Oregon and has approximately ten years of experience. LauersdorfDecl.
[267] at 7-8. She specializes in appellate work and the Mullers hired her when Country Mutual
first alerted the Court it planned to appeal. Lauersdorf Deel. [267] at 9. The Mullers request rates
of $275/hour through August 2015, and $300/hour after August 2015 for Ms. Puracal. Motion
[266] at 8. The Mullers' expert opines that these are reasonable rates for an attorney with
comparable experience and skills. McDermott Deel. [271] at 4, 7.
I find an hourly rate of$275 to be reasonable for Ms. Puracal. The 2012 OSB Survey
lists an average salary of $258 for attorneys in the Portland area with 7-9 years experience, and
$280 for attorneys with 10-12 years of experience. OSB 2012 Economic Survey. Ms. Puracal's
requested rate of$300 would put her above the 75th percentile of hourly rates for attorneys with
7-9 years of experience (which she would have had for most of this litigation). Id; see Prison

Legal News, 2013 WL 2156471, at *4.

17 - OPINION AND ORDER

d. Jone! Ricker
Mr. Ricker (who is now deceased) worked on this case from 2013-2014. He had been a
member of the Oregon State Bar since 1979, worked in La Grande, and had approximately 34
years of experience at the time he worked on this case. Joseph Deel. [269], Ex. B. The Mullers
request $210/hour for Mr. Ricker's work in 2013, and $225/hour for his 2014 work. Joseph Deel.
[269] at 2. These rates are roughly in line with the average rates listed in the 2012 OSB Survey
for an attorney with 30 or more years of experience in Eastern Oregon ($217/hour), and well
below the $340/hour average rate for an attorney in Portland. OSB 2012 Economic Survey.
Country Mutual does not object to these rates, and I find Mr. Ricker's requested hourly rates to
be reasonable.

e. Brooke Calcagno
Ms. Calcagno has fourteen years of experience as a complex litigation legal assistant and
paralegal, and has a Bachelor of Fine Arts from Southern Oregon University. Bonaparte Deel.
[268]. The Mullers request $120/hour prior to August 2015, and $150/hour after August 2015,
for Ms. Calcagno' s work. Bonapatie Deel. [268] at 8.
"Although the OSB Economic Surveys contain no information regarding paralegal billing
rates, Judges in this District have noted that a reasonable hourly rate for a paralegal should not
exceed that of a first year associate." Precision Seed Cleaners, 976 F. Supp. 2d at 1248. The
average hourly rate for an attorney with 0-3 yem·s of experience in Portland is $182, according to
the 2012 OSB Survey. OSB 2012 Economic Survey.
I grant Ms. Calcagno a $120/hour rate for the entire time. I do not find reasonable the
requested $150/hour rate, because it is unclem· from the record whether Ms. Calcagno has a
paralegal certification, or how long she has been a paralegal rather than a legal assistant. And as

18 - OPINION AND ORDER

this court has stated, "recent decisions have awarded much lower hourly rates for paralegal time,
with many awards in the $100 to $125 per hour range." Precision Seed Cleaners, 976 F. Supp.
2d at 1249 (citing cases and granting an award of $125/hour where a paralegal had a certification
and over 10 years of experience as a paralegal).
f.

Cher Vasquez, Katie Welsh, Nadya Okamoto,
Isabelle Zheng, Robin Lister, Janet Stowell, and
Logan Joseph.

Cher Vasquez, Katie Welsh, Nadya Okamoto, Isabelle Zheng, Robin Lister, Janet
Stowell, and Logan Joseph are paralegals, legal assistants, and law clerks at the three law finns
in this case. LauersdorfDecl. [267], Ex. 8b at 173; Bonaparte Deel. [268] at 8; Joseph Deel.
[269] at 2. The Mullers ask for hourly rates ranging from $50 to $150 for the work of these seven
individuals, but put fmih no evidence of their backgrounds, skills, or reasonable hourly rates.

See, e.g., LauersdorfDecl. [267], Ex. 8b at 173; Bonaparte Deel. [268] at 8; Joseph Deel. [269].
This court has previously awarded $50 per hour for paralegals and assistants where there was no
evidence of their experience or skills. See, e.g., Precision Seed Cleaners, 976 F. Supp. 2d at
1249; Sterling Sav. Bankv. DerekL. BrmFn & Assocs., Inc., No. 03:10-cv-00674-BR, 2013 WL
164424, at *4 (D. Or. Jan. 15, 2013). I therefore find reasonable an hourly rate of$50/hour for
Vasquez, Walsh, Okamoto, Zheng, Lister, Stowell, and Joseph.

g. Anthony Reiner
As discussed above, there is no evidence in the record as to Mr. Reiner's qualifications,
the Mullers do not request attomey fees for his work in their Motion, and I grant no fees for the
8.5 billed hours he worked on this case.

3. Fees for experts

19 - OPINION AND ORDER

The Mullers request $8,000 for the work of attorney fee expe1is. Motion [266] at 14.
Oregon law allows "fees for services provided in conjunction with the recovery of the underlying
fees," including expert fees. Emerald People's Util. Dist. v. Pacificorp, 801 P.2d 141, 143 (Or.
1990); see Van Valkenburg v. Or. Dep 't of Corr., No. 3:14-cv-00916-MO, 2017 WL 532950, at
*23 (D. Or., June 9, 2017) (allowing expert fees in conjunction with a "fees on fees" petition). I
therefore grant the Mullers' request for expert fees. However, because their expert James T.
McDermott stated, "I expect to charge plaintiffs' counsel a total of approximately $4,000-$5,000
for my expe1i work in this case" and their expert David B. Markowitz charged $3,000, I award
the lower amount of $7,000. McDermott Deel [271] at 2; Markowitz Deel. [270] at 5.
In sum, I grant $916,081 in fees prior to the filing of the attorney fees motion, which
includes a 15% reduction to account for duplication and excessive hours, and $7,000 in expert
fees.

4. Supplemental fees (see Appendix B)
After the Motion for Attorney Fees was filed, the Mullers' counsel billed 95.8 hours of
work on settlement negotiations, the response to the Motion for New Trial, and the reply to the
attorney fees motion. 6 LauersdorfDecl. [292], Ex. 1 at 5; Bonaparte Deel. [293], Ex. 2. The
Mullers did not apply a 15% reduction to these requested fees. Although these records reveal
issues with duplication and intra-office conferences, the Mullers addressed many of these issues
by noting "no charge" hours for the hours of Maloney' s work that overlapped with Bonaparte's
and Lauersdorfs work. I saw no administrative-work hours in my review. 95.8 hours still seems
to be an excessive amount of time spent on these motions, and I impose a 15% reduction on the
requested fees to ensure these hours are consistent with the rest of the fee petition. See Schwarz
6

I calculate this number based on the hours documented in the accompanying Declarations,
because the Reply brief is not entirely clear on the amount the Mullers are asking for, and Lauersdorf
acknowledges he accidentally doublecounted the hours on August 3, 2017.

20 - OPINION AND ORDER

v. Sec'y of Health & Human Servs., 73 F.3d 895, 909 (9th Cir. 1995) ("[W]e have held that a
district court does not abuse its discretion by applying the same percentage of merits fees
ultimately recovered to determine the proper amount of the fees-on-fees award." I therefore grant
$26,913.13 in supplemental fees.

5. The Mullers' request for a multiplier
The Mullers request a 2.0 multiplier, based on the "nature of the case and the conduct of
Country [Mutual] and its attorneys." Motion [266] at 14. The Mullers cite to two other cases in
which the court awarded a multiplier against defendants who employed Country Mutual' s
current attorneys, Beckv. Metro. Prop. & Cas. Ins. Co., 2016 WL 4978411, and Price v. Country

Preferred Ins. Co., Union County Circuit Court, Case No. 11-08-4 7250. Motion [266] at 14.
Country Mutual distinguishes Beck and Price, noting that Beck only involved a value dispute and
that the defendants in Price refused to engage in settlement discussions. Response [284] at 12.
"Oregon law permits an enhancement of fees when it is supported by the facts and
circumstances of the case." Beck, 2016 WL 4978411, at *22. An enhanced fee award may be
appropriate where the recovery was an "exceptional success," and other favorable factors exist,
including "the difficulty and complexity of the issues involved in this case, the value of the
interests at stake, as well as the skill and professional standing oflawyers involved." Strunk v.

Pub. Empls. Ret Bd, 169 P.3d 1242, 1254 (Or. 2007). The Mullers argue for a multiplier based
on the conduct of Country Mutual and its attorneys. As discussed above, I think Country
Mutual's conduct was generally permissible, and I do not grant a multiplier in this case.

III.

Costs
28 U.S.C. § 1920 allows federal courts to award costs for filing and docketing,

"transcripts necessarily obtained for use in the case," witnesses, and copies. 28 U.S.C. § 1920. 28

21- OPINION AND ORDER

U.S.C. § 1821 dictates how witnesses may be paid. 28 U.S.C. § 1821. Federal Rule of Civil
Procedure 54(d)(l) "creates a presumption in favor of awarding costs to the prevailing party."

Beck, 2016 WL 4978411, at *24 (D. Or. Sept. 16, 2016) (citing Ass 'n ofMexican-Am. Educators
v. California, 231F.3d572, 591 (9th Cir. 2000) (en bane)).
The Mullers seek $31,076.29 7 in costs for the filing fee, process servers, deposition
transcripts, transcripts of court proceedings, witness fees, printing and copying costs, legal
research, postage, delivery charges, and long-distance phone calls. Motion [266] at 15; [267-11,
267-12, 269]. Costs are allowed for each of these categories. See 28 U.S.C. § 1920 (filing fees,
necessary transcripts, witness fees, and copies); 28 U.S.C. § 182l(b) ("A witness shall be paid an
attendance fee of$40 per day for each day's attendance."); 28 U.S.C. § 182l(c)(2) (providing for
a "travel allowance equal to the mileage allowance" paid to federal employees for witnesses);

Schmitt v. VAG Group, Inc., No. 03:09-cv-00380-HU, 2010 WL 3732980, at *6 (D. Or. Aug.
12, 2010) (describing postage and legal research fees as costs).
Country Mutual objects to $2,133 in costs incuTI"ed to obtain transcripts of depositions
and for a transcript of a Rule 16 conference with Judge Brown. Response [284] at 12.
"Deposition costs are taxable if they are reasonably necessary for trial." Evanow v. WV Neptune,
163 F .3d 1108, 1118 (9th Cir. 1998). "A deposition need not be absolutely indispensable to
justify an award of costs; rather, it must only be reasonably necessary at the time it was taken,
without regard to later developments that may eventually render the deposition unneeded at the
time of trial or summary disposition." Frederick v. City ofPortland, 162 F.R.D. 139, 143 (D. Or.
1995). "The cost of a deposition not used at trial may be taxed iftaking the deposition was
reasonable as pait of the pretrial preparation of the case, rather than merely discovery for the
7

In Laudersdorf's supplemental declaration, the Mullers note $302.30 in costs for unexplained copying
and postage, and parking fees at trial. Because these costs are not mentioned in their Reply brief, I do not
include them here.

22 - OPINION AND ORDER

convenience of counsel, or ifthe deposition was required for a dispositive motion." Arboireau v.
Adidas Salomon AG, No. CV-01-105-ST, 2002 WL 31466564, at *5 (D. Or. June 14, 2002). But
"[d]isallowance for expenses of depositions not used at trial is within the district court's
discretion." Wash. State Dep 't ofTransp. v. Wash. Nat. Gas Co., 59 F.3d 793, 806 (9th Cir.
1995).
Here, Country Mutual objects to costs for the deposition transcripts of: (1) Drew
Lucurell; (2) Heather Connell; (3) JeffFrenette; (4) Nicholas Flynn; (5) Scott Goff; and (6)
Zoysha Halstead. Although neither party argues in detail about why these costs should or should
not be allowed, each of these depositions were "reasonably necessary" for trial or dispositive
motions. The Mullers submitted excerpts from the depositions of JeffFrenette and Nicolas Flynn
in their Partial Motion for Summary Judgment [104, 105, 115]. Frenette, Flynn, Zoysha Halstead
(under the name Helen), and Scott Goff testified at trial. [243]. The Mullers originally planned to
have Heather Connell testify at trial about the Plaintiffs' prior fires and insurance claims. Joint
Witness List [180]. And Lucurell was an adjuster who worked on the Mullers' claims. I therefore
allow the Mullers costs for the deposition transcripts.
The parties also do not make detailed arguments about the Rule 16 conference transcript,
bu it includes details about comt rnlings regarding the timing and substance of certain dispositive
motions, and I allow the Mullers costs for this transcript.
After reviewing the documents submitted by the Mullers, I conclude they have
sufficiently accounted for most costs, with one exception. Some of the Muller's copying costs
are not sufficiently explained in their affidavits. "Copying costs for documents produced to
opposing parties in discovery, submitted to the court for consideration of motions, and used as
exhibits at trial are recoverable .... A party's conclusory asse1tion that all copies were

23 - OPINION AND ORDER

reasonably necessary to its case is, by itself, insufficient." Beck, 2016 WL 4978411, at *26. The
Mullers account for the majority of their copying costs as related to copies for Country Mutual,
the Court, or for trial. See [267-11, 267-12]. But there is $167.3 8 in copying costs listed without
an explanation, Joseph Deel. [269] at 2, and I deduct these costs from the overall bill. In
summary, I grant the Mullers $30,908.91 in costs.

IV.

Conclusion
For the reasons stated above, I GRANT in part and DENY in paii the Mullers' Motion

for Attorney Fees [266]. I grant $1,367,466.44 in attorney fees, $7,000 in expert fees, $8,491 as
previously awarded by Judge Brown, and $30,908.91 in costs, as shown in Appendix A to this
opinion.
IT IS SO ORDERED.

DATED this ____6.

~of December, 2017.

M~

MICHAELW:M0N
Chief United States District Judge

24 - OPINION AND ORDER

Appendix A: Final Calculation of All Fees and Costs

Prejudgment interest

Attorney Fees
Fees Post Fee Motion
Multivlier
Cost Bill
Attorney fee experts
Total
Judge Brown award
Judgment amount

25 - OPINION AND ORDER

Re11uested
$428,290.63 (plus
additional fees after motion
was filed)
$1,175,568.49
$31,146.25
x2
$31,076.29
$8,000
$2,884,796.40

Awarded
$386,563.40

$916,081
$26,913.13
None
$30,908.91
$7,000
$1,367,466.44
$8,491
$1,375,957.44

Appendix B: Final Calculations of Fees

Name

Position

Rate

Hours
requested

Total
deductions

Final
hours

Total

Less 15%
deduction

Robert
Bonaparte
Andrew C.
Lanersdorf

Attorney

$375

646.4

5.2

641.2

$240,450

$204,383

Attorney

$350

1283.1

21.9

1261.2

$441,420

$375,207

Attorney

$350

567.5

23.2

544.3

$190,505

$161,929

Attorney

$275

159.7

159.7

$43,918

$37,330

Attorney

$185

22.2

22.2

$4,107

$3,491

Attorney

$210

580.9

18.7

562.2

$118,062

$100,353

Attorney
(trial
attendance)
Attorney

$150

52.5

0

52.5

$7,875

$6,694

$210

36.8

0

36.8

$7,728

$6,569

Attorney

$225

12.6

0.5

12.1

$2,723

$2,314

Brooke
Calcagno
Cher
Vasquez

Paralegal

$120

71

1.4

69.6

$8,352

$7,099

Paralegal

$50

139.15

0.1

139.05

$6,953

$5,910

Katie
Walsh
Robin
Lister

Paralegal

$50

18.1

18.1

$905

$769

Legal
Assistant
Legal
Assistant
Legal
Assistant
Legal
Assistant

$50

12.6

1.8

$90

$76

$50

63.2

63.2

$3,160

$2,686

$50

35.5

12

23.5

$1,175

$999

$50

6.4

2

4.4

$220

$187

Francis J.
Maloney
Janis C.
Puracal
Scott
MacLaren
Scott
MacLaren
Scott
MacLaren
Jonel
Ricker
Jonel
Ricker

Nadya
Okamoto
Isabelle
Zheng
Janet
Stowell

26 - OPINION AND ORDER

10.8

Logan
Joseph
Anthony
Reiner

Law Clerk

$50

2

Attorney

0

2

8.5

$85

0

8.5

$100
$0

$0

Total $1,077,742

Appendix C: Supplemental Fees

Name

Position

Rate

Hours requested

Total

Robert
Bonaparte

Attorney

$375

21.3

$7,987.50

AndrewC. Attorney
Lauersdorf

$350

42.5

$14,875.00 $12,643.75

Attorney

$275

32

$8,800.00

Janis C.
Puracal

Less 15%
deduction
$6,789.38

$7,480.00

Total $31,662.50 $26,913.13

27 - OPINION AND ORDER

$916,081