PLANK v. THE DEVEREUX FOUNDATION et al

Filing 17

ORDER THAT PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS IS GRANTED; ETC.. SIGNED BY HONORABLE RONALD L. BUCKWALTER ON 3/16/15. 3/17/15 ENTERED AND E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARY PLANK,

:
:
Plaintiff,
:
v.
:
:
THE DEVEREUX FOUNDATION,
:
THE DEVERAUX FOUNDATION LONG :
TERM DISABILITY PLAN, and AETNA :
LIFE INSURANCE CO.,
:
:
Defendants.
:

CIVIL ACTION

NO.

13-7337

MEMORANDUM AND ORDER
Plaintiff has petitioned for counsel fees and the court agrees with plaintiff that she did
achieve some success on the merits. An application of the well known Ursic factors also
supports plaintiff’s petition.
As to factor one, the offending parties culpability or bad faith. Defendant has never
offered an explanation as to why its reclassified plaintiff’s own occupation. It simply states that:
“Aetna re-classified Plaintiff’s own occupation based on this DOT assessment. While
Aetna acknowledges it had previously accepted Plaintiff’s own occupation as medium
and had applied that assessment in its initial LTD award findings, the re-classification did
not involve any malice or guilty purpose.”
There is simply no explanation as to why this re-classification took place, only that it did
take place after a vocational rehabilitation consultant’s review. It should be mentioned that in the
summary judgment decision, defendant addressed the issue as follows:
Aetna acknowledges this Court may reasonably find that this re-classification, in light of
the totality of the circumstances presented, raises a genuine issue as to whether Aetna
abused its discretion when it found that Plaintiff was capable of performing the material
duties of her own occupation, as re-classified to light duty. Accordingly, Aetna does not
seek to call upon this Court to engage in the fact-intensive and time-consuming factual
and legal analysis of Aetna’s own occupation claim determination.

This is a close issue but the court feels defendant’s conduct to be more than mere
carelessness. Secondly, there is no issue as to the ability of defendant to pay the award of fees.
As to the third factor, it is reasonable to believe that an award of attorney’s fees might in
some small way perhaps encourage the defendant to at least review its procedures to assure they
are fair in cases of this nature. As to the fourth factor, it is difficult to determine the benefit, if
any, conferred on members of the plan. As to the fifth factor, defendant’s initial position was
without merit, a fact which it conceded for reasons stated in its summary judgment brief quoted
above.
No guidance has been offered by defendant as to what amount to award and plaintiff’s
petition adequately supports the requested hourly rate. The total time spent in preparing the
complaint and summary judgment motion seem excessive and the final order will reflect that.
AND NOW, this 16th day of March, 2015, upon consideration of Plaintiff’s Motion for
Attorney’s Fees and Costs, and Defendant’s Response thereto, it is hereby ORDERED that
Plaintiff’s Motion (Docket No. 14) is GRANTED as follows:
Attorney’s Fees
Costs

$14,229.00
400.00
____________
$14,629.00

TOTAL

It is so ORDERED.
BY THE COURT:

s/ Ronald L. Buckwalter
RONALD L. BUCKWALTER, S.J.

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