State Farm Fire and Casualty Company v. Evans Construction & Siding Corp. et al

Filing 153

Opinion and Order. The Court GRANTS Evans Supplemental Motion 149 for Attorney Fees and Costs and AWARDS attorney fees to Evans in the amount of $138,210 and costs in the amount of $4,955.14. Signed on 1/10/22 by Judge Anna J. Brown. See attached for full text. (bb)

Case 3:19-cv-00972-BR

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

STATE FARM FIRE AND CASUALTY
COMPANY, an Illinois Company,

3:19-cv-00972-BR
OPINION AND ORDER

Plaintiff,
v.
EVANS CONSTRUCTION & SIDING
CORP., an Oregon corporation;
FIRST MERCURY INSURANCE
COMPANY, a Delaware company;
NEVADA CAPITAL INSURANCE
COMPANY, a Nevada
corporation; PREFERRED
CONTRACTORS INSURANCE COMPANY
RISK RETENTION GROUP, LLC, a
Montana limited liability
company; HDI GLOBAL SPECIALTY
SE f/k/a INTERNATIONAL
INSURANCE COMPANY OF HANOVER
SE f/k/a INTERNATIONAL
INSURANCE COMPANY OF HANOVER
PLC, a foreign insurance
company; and CRESTON HOMES,
LLC, an Oregon limited
liability company,
Defendants.

1 - OPINION AND ORDER

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DAVID P. ROSSMILLER
ELISSA M. BOYD
Betts, Patterson & Mines, P.S.
111 S.W. Fifth Ave., Suite 3650
Portland, OR 97204
[phone]
Attorneys for Plaintiff
EMILY S. MILLER
MARGARET E. SCHROEDER
Miller Insurance Law LLC
521 S.W. Clay Street
Portland, OR 97201
(971) 255-143
Attorneys for Defendant Evans Construction Siding
Corporation
ANDREW S. MOSES
ELAINE J. BROWN
Gordon & Polscer, L.L.C.
9020 S.W. Washington Square Road, Suite 560
Tigard, OR 97223
[phone]
Attorneys for Defendant First Mercury Insurance
Company
THOMAS LETHER
ERIC J. NEAL
Lether Law Group
1848 Westlake Avenue N., Suite 100
Seattle, WA 98109
Attorneys for Defendant Nevada Capital Insurance
Company
BROWN, Senior Judge.
This matter comes before the Court on Defendant Evans
Construction Siding Corporation’s Supplemental Motion (#149) for
Attorney Fees and Costs.

2 - OPINION AND ORDER

The Court concludes the record is

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sufficiently developed, and, therefore, oral argument would not
be helpful to resolve this Motion.
For the reasons that follow, the Court GRANTS Evans’s
Supplemental Motion and awards attorney fees to Evans in the
amount of $138,210 and costs in the amount of $4,955.14.

BACKGROUND
Because the parties are familiar with the facts underlying
this action, the Court sets forth only the facts that are
relevant to the pending Motion.
On June 21, 2019, Plaintiff filed a Complaint in this Court
against Defendant Evans in which it brought four claims:
(1) declaratory judgment - duty to defend, (2) declaratory
judgment - duty to indemnify, (3) breach of contract, and
(4) misrepresentation.
On December 20, 2019, Plaintiff filed a First Amended
Complaint in which it added First Mercury Insurance Company,
Nevada Capital Insurance Company, and others as additional
Defendants and added a fifth claim for equitable subrogation/
unjust enrichment or, in the alternative, common law indemnity
against the insurance-company Defendants.
On January 6, 2020, State Farm filed a Second Amended
Complaint in which it dismissed all Defendants except Evans,
First Mercury, and Nevada Capital.
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On June 10, 2021, the Court issued an Opinion and Order in
which, among other things, it granted Evans’s Motion to Dismiss
Plaintiff’s first and second claims on the basis that those
claims were moot, denied Plaintiff’s Motion for Summary Judgment
as to claims three and four, and granted Evans’s Cross-Motion for
Summary Judgment as to claims three and four.
On August 9, 2021, Evans filed a Motion for Attorney Fees
and Costs pursuant to Oregon Revised Statute § 20.105 and Federal
Rule of Civil Procedure 54(d).
On October 13, 2021, the Court issued an Opinion and Order
in which it granted in part and denied in part Evans’s Motion for
Attorney Fees.

Specifically, the Court concluded Evans

established it was entitled to attorney fees on Plaintiff’s
second, third, and fourth claims and for attorney fees accrued
after April 21, 2020, on Plaintiff’s first claim.

Evans,

however, did not identify in its billing records the claims on
which its attorneys were performing work on each date.

The

Court, therefore, directed Evans to review its attorney fee
records and to reduce its requested fees for any work performed
on Plaintiff’s first claim that was performed before April 21,
2020.

The Court also expressed concern about the number of hours

requested by Evans’s counsel in this relatively straight-forward
insurance matter.

The Court noted Evans sought attorney fees in

the amount of $189,805 comprised of 486.5 hours of time billed by

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partners and 50.9 hours of time billed by of counsel for an
action that was resolved in roughly two years without trial.
Accordingly, the Court directed Evans to file a Supplemental
Motion for Attorney Fees that included a detailed explanation of
the need for four experienced attorneys to bill over 500 hours to
resolve this matter including a specific explanation why the
total fees sought should not be reduced for duplication of
effort.
On November 8, 2021, Evans filed a Supplemental Motion for
Attorney Fees in which it seeks $197,785 in attorney fees and
$17,375.14 in costs.
The Court took Evans’s Motion and Bill of Costs under
advisement on November 22, 2021.

SUPPLEMENTAL MOTION (#149) FOR ATTORNEY FEES
As noted, Evans seeks attorney fees in the amount of
$197,785 in this matter.
I.

Standards
“In a diversity case, the law of the state in which the

district court sits determines whether a party is entitled to
attorney fees, and the procedure for requesting an award of
attorney fees is governed by federal law.”

Riordan v. State Farm

Mut. Auto. Ins. Co., 589 F.3d 999, 1004 (9th Cir. 2009)(quotation
omitted).

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When determining the amount to award as attorneys’ fees
when, as here, the “award of attorney fees is . . . required by
statute,” Oregon Revised Statutes § 20.075(2) directs the Court
to consider the following factors:
(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.
See Williams v. Salem Women's Clinic, 245 Or. App. 476, 482-83
(2011)(“[T]he trial court strayed from the correct analysis.
Instead of determining whether the record was ‘entirely devoid’
of support for [the] claim, as O.R.S. § 20.105(1) requires, the
court identified several factors that it took into account in
awarding fees. . . .

6 - OPINION AND ORDER

The factors listed in the trial court's

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. . . opinion[] reflect those specified in O.R.S. § 20.075, which
apply when another source of law gives a court discretion to
award attorney fees.

O.R.S. § 20.075(1).

But those factors do

not apply to a court's decision whether to award fees when, as
here, a party seeks a mandatory attorney fee award under O.R.S.
§ 20.105(1))(emphasis in original)).
II.

Factors in Oregon Revised Statutes § 20.075(2)(b), (e)-(h)
The parties do not address the factors set out in

§ 20.075(2)(b), (e)-(h) and these factors do not appear to be
disputed.

The Court, therefore, concludes these factors are not

relevant to the attorney fee issues in this matter.
III. Oregon Revised Statutes § 20.075(2)(c)
Oregon Revised Statutes § 20.075(2)(c) directs the Court to
consider “[t]he fee customarily charged in the locality for
similar legal services.”
Plaintiff seeks attorney fees for Rachel Nies at rates of
$325 and $350 per hour; Margaret Schroeder at rates of $350 and
$375 per hour; Emily Miller at rates of $325, $350, and $375 per
hour; and W. Blake Mikkelsen at a rate of $300 per hour.

Evans

does not assert the hourly rates requested for Plaintiff’s
counsel are unreasonable.

Nevertheless, the Court has an

independent duty to review a motion for attorney fees for
reasonableness.

See Gates v. Deukmejian, 987 F.2d 1392, 1398

(9th Cir. 1992).

See also Cruz v. Alhambra Sch. Dist., 282 F.

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App'x 578, 580 (9th Cir. 2008)(The district court has an
"obligation to articulate . . . the reasons for its findings
regarding the propriety of the hours claimed or for any
adjustments it makes either to the prevailing party's claimed
hours or to the lodestar.").
To determine the reasonable hourly rate of an attorney this
Court uses the most recent Oregon State Bar Economic Survey
published in 2017 as its initial benchmark.

Attorneys may argue

for higher rates based on inflation, specialty, or any number of
other factors.
A.

Rachel Nies
Evans requests hourly rates of $325 and $350 per hour

for the time Nies spent on this case.
Nies graduated from law school in 1994 and had 25 to 26
years of experience during this action.

During the relevant

period Nies was a partner in Miller Nies, LLC.

Nies’s resume

indicates she specializes in insurance-coverage analysis and
litigation.

The Oregon State Bar Economic Survey rates for an

attorney with comparable years of practice in Portland are
between $325 and $525 per hour.

The Court, therefore, concludes

the hourly rates of $325 and $350 sought by Nies are reasonable.
B.

Margaret Schroeder
Evans requests hourly rates of $350 and $375 per hour

for the time Schroeder spent on this case.

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Schroeder graduated from law school in 2002 and had 18
to 19 years of experience during this action.
partner in Miller Nies, LLC.

Schroeder is a

Schroeder’s resume indicates she

specializes in insurance-coverage analysis and litigation.

The

Oregon State Bar Economic Survey rates for an attorney with
comparable years of practice in Portland are between $250 and
$500 per hour.

The Court, therefore, concludes the hourly rates

of $350 and $375 sought by Schroeder are reasonable.
C.

Emily Miller
Evans requests hourly rates of $325 to $375 per hour

for the time Miller spent on this case.
Miller graduated from law school in 2003 and had
between 16 and 18 years of experience during this action.
is a partner in Miller Nies, LLC.

Miller

Miller’s resume indicates she

specializes in insurance-coverage analysis and litigation.

The

Oregon State Bar Economic Survey rates for an attorney with
comparable years of practice in Portland are between $250 and
$500 per hour.

The Court, therefore, concludes the hourly rates

between $325 and $375 sought by Miller are reasonable.
D.

W. Blake Mikkelsen
Evans requests an hourly rate of $300 per hour for the

time Mikkelsen spent on this case
Mikkelsen graduated from law school in 2007 and has 14
years of experience.

9 - OPINION AND ORDER

Mikkelsen’s resume indicates he specializes

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in insurance-coverage analysis and litigation.

Page 10 of 17

The Oregon State

Bar Economic Survey rates for an attorney with comparable years
of practice in Portland are between $180 and $460 per hour.

The

Court, therefore, concludes the hourly rate of $300 sought by
Mikkelsen is reasonable.
IV.

Oregon Revised Statutes § 20.075(2)(a)
Oregon Revised Statutes § 20.075(2)(a) directs the Court to

consider “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.”
A.

Novelty and Difficulty of the Issues
Evans asserts this was a “novel and complex” insurance

case.

Plaintiff asserted it did not and could not have had a

duty to defend or to indemnify the underlying action because
Evans’s insurance policies provided by Plaintiff expired before
the defective work at issue in the underlying action occurred.
Plaintiff contended it was improper for Evans to tender a claim
to Plaintiff when Evans was aware of the time frame of the
construction and the period of the insurance policies.

In

addition, Plaintiff asserted Evans’s actions constituted a breach
of the cooperation clause of the insurance policies as well as
misrepresentation.

Claims for duty to defend, duty to indemnify,

breach of an insurance clause, and misrepresentation are not

10 - OPINION AND ORDER

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novel claims.

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In addition, although there was a dispute between

the parties as to how facts in the record should be applied to
the law as well as a lack of clear statement as to the particular
legal issues associated with the duty to defend and to indemnify
under the specific circumstances of this case, the dispute
between Plaintiff and Evans as a whole was not complex.
B.

Attorney Time
In its Supplemental Motion for Attorney Fees Evans

seeks 61.8 hours of time by Rachel Nies, 424.1 hours of time by
Margaret Schroeder, 21.1 hours of time for Emily Miller, and 50.9
hours for Blake Mikkelsen for a total of 557.9 hours of attorney
time in the total amount of $197,785.1
Plaintiff objects to Evans’s requested fees on the
basis that the amount of time spent by counsel was excessive in
light of their extensive insurance experience.

For example,

Evans seeks 192 hours of attorney time for discovery.

Plaintiff,

however, produced a total of only 494 pages of documents during
discovery, many of which were duplicates of documents in Evans’s
control.

The claim file, which was the central point of this

litigation, was under 30 pages.

In addition, there were only

four depositions of Plaintiff’s personnel that totaled 5.5 hours
of testimony, two depositions of experts that took six hours in
total, and one 30(b)(6) deposition that had 4.5 hours of

1

See Exhibit 1 for the Court’s calculations.

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testimony.

Thus, in total there were 16 hours of deposition

testimony.

The Court notes Nies, Schroeder, and Miller were all

partners with significant experience and for the rates they are
requesting it is expected that they be experts in the matters at
issue in this case and that they be more efficient with their
time than the billing record in this case indicates.

For

example, this Court found in a complex insurance case that
involved a 200-page claim file, four depositions, and disputed
coverage issues that 54 hours of discovery conducted by a partner
was reasonable.

See Edwards v. Cincinnati Ins. Co., 3:19-cv-

01425-BR, Opin. and Order (Feb. 8, 2021).

The Court reaches the

same conclusion under the circumstances of this case and,
therefore, declines to award attorneys’ fees to Evans for 138
hours of time spent on discovery.2

See Exhibit 1.

Plaintiff also notes although Evans asserts the
summary-judgment briefing in this matter totaled 435 pages, the
record reflects that the briefs relevant to Evans totaled only
266 pages of argument, 107 of which were drafted by Evans.
Decl. of David Rossmiller at ¶ 4.

See

The remaining pages related to

Plaintiff’s claims against the other insurers.

Moreover, Evans

asserts three attorneys were necessary for the summary judgment

2

Nies and Schroeder conducted all but .9 hours of discovery
in this matter at a rate of $350. Second Supp’l Decl. of
Margaret Schroeder, Ex. 3 at 28. The Court, therefore, deducts
the 138 hours of discovery from Nies and Schroder’s requested
hours. See Exhibit 1.
12 - OPINION AND ORDER

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briefing because Mikkelsen and Miller have specific insurance
coverage expertise.

As Plaintiff points out, however, if two

attorneys were experts it is unclear why a third attorney was
required.

The Court notes attorneys with the level of experience

of those involved in this matter and billing at rates between
$300 and $375 per hour should be more efficient with their time
in preparing and briefing summary judgment.

In order to set an

attorney fee award that fairly adjusts for the noted duplication
of work, the Court, therefore, reduces Evans's requested hours
spent on summary judgment research, drafting, and review by 33
hours across the time spent by Mikkelsen, Miller, and Schroeder
on these services.
In summary the Court concludes Evans has established
$138,210 of the requested $197,785 attorney fees was reasonably
expended.

See Ex. 1 to Opin. and Order.

Accordingly, the

Court awards Evans attorneys’ fees in the amount of $138,210.

BILL OF COSTS (#143)
Evans requests costs in the amount of $17,375.14 comprised
of witness fees, deposition transcripts, and expert-witness fees.
Plaintiff does not object to Evans’s requested costs for witness
fees and deposition transcripts totaling $4,955.14.

Plaintiff,

however, objects to Evans’s request for $12,420 in costs for

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expert-witness fees on the basis that 28 U.S.C. § 1920 does not
permit recovery of expert-witness fees.

I.

Standards.
Absent a showing of circumstances not relevant here, an

award of costs is governed by federal law.

See Champion Produce,

Inc. v. Ruby Robinson Co., Inc., 342 F.3d 1016, 1022 (9th Cir.
2003).
28 U.S.C. § 1920 allows a federal court to tax specific
items as costs against a losing party pursuant to Federal Rule of
Civil Procedure 54(d)(1).

Section 1920 provides:

A judge or clerk of any court of the United States
may tax as costs the following:
(1)

Fees of the clerk and marshal;

(2) Fees for printed or electronically recorded
transcripts necessarily obtained for use in the
case;
(3) Fees and disbursements for printing and
witnesses;
(4) Fees for exemplification and the costs of
making copies of any materials where the copies
are necessarily obtained for use in the case;
(5)

Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts,
compensation of interpreters, and salaries, fees,
expenses, and costs of special interpretation
services under section 1828 of this title.
A bill of costs shall be filed in the case and,
upon allowance, included in the judgment or
decree.
14 - OPINION AND ORDER

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II.

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Analysis
As noted, generally costs are awarded to the prevailing

party in a civil action as a matter of course unless the court
directs otherwise.

Fed. R. Civ. P. 54(d).

The court must limit

an award of costs to those defined in 28 U.S.C. § 1920 unless
otherwise provided for by statute.

Grove v. Wells Fargo Fin.

Ca., Inc., 606 F.3d 577, 579-80 (9th Cir. 2010).

See also

Haagen-Dazs Co., Inc. v. Double Rainbow Gourmet Ice Creams, Inc.,
920 F.2d 587, 588 (9th Cir. 1990)(citing Crawford Fitting Co. v.
J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987)).
The Supreme Court has made clear that § 1920 and Federal
Rule of Civil Procedure 54(d) do not authorize an award of
expert-witness fees.

For example in Crawford the Supreme Court

addressed whether courts could award expert witness fees under
Federal Rule of Civil Procedure 54(d).

482 U.S. at 441.

The

Court noted Rule 54(d) authorizes an award of “costs” but does
not expressly refer to expert witness fees and § 1920 also does
not include expert witness fees in its definition of costs.

Id.

The Court, therefore, concluded the prevailing party could not
obtain expert witness fees noting “[w]hen ‘a prevailing party
seeks reimbursement for fees paid to its own expert witnesses, a
federal court is bound by the limit of § [1920], absent contract
or explicit [federal] statutory authority to the contrary.’”

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Rimini St., Inc. v. Oracle USA, Inc., 139 S. Ct. 873, 877–78
(2019)(quoting Crawford, 482 U.S. at 439).
Evans does not point to any contract or explicit federal
statutory authority that authorizes an award of expert witness
fees as costs in this matter.

The Court, therefore, declines to

award Evans expert witness fees.

Accordingly, the Court the

Court awards costs to Evans in the amount of $4,955.14.

CONCLUSION
For these reasons, the Court GRANTS Evans’s Supplemental
Motion (#149) for Attorney Fees and Costs and AWARDS attorney
fees to Evans in the amount of $138,210 and costs in the amount
of $4,955.14.
IT IS SO ORDERED.
DATED this 10th day of January, 2022.

/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge

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State Farm v. Evans
3:19-cv-00972-BR

Rachel Nies
Main litigation

Margaret Schroeder
Main litigation
Motion for Fees
Supp'l Mot. for Fees

Emily Miller
Main litigation

Motion for Fees

W. Blake Mikkelsen
Main litigation

Time
requested

Total
requested

rate
27.5 $
34.3 $
61.8

325 $
350 $
$

Time
Disallowed

Total Allowed

8,938
12,005
20,943

$
26.3 $
$

8,938
2,800
11,738

32,235
68,475
4,688
5,325
110,723

203.8
193.6
12.5
14.2
424.1

$
$
$
$

350
375
375
375

$
$
$
$
$

71,330
72,600
4,688
5,325
153,943

111.7 $
11 $
$
$
$

5.2
0.9
14.2
0.8
21.1

$
$
$
$

325
350
375
375

$
$
$
$
$

1,690
315
5,325
300
7,630

$
11 $
$
$
$

1,690
(3,535)
5,325
300
3,780

300 $

15,270

11 $

11,970

$

138,210

50.9 $
557.9

Exhibit 1