Peggy Renee Cockrell v. Hartford Life and Accident Insurance Companies
Filing
36
ORDER granting 33 Motion for Attorney Fees. Signed by Judge Samuel H. Mays, Jr on 05/15/2013.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
PEGGY RENEE COCKRELL,
Plaintiff,
v.
HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY,
Defendant
)
)
)
)
)
)
)
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)
Case No. 11-2149
ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES
Before
the
(“Cockrell”)
(“Mot.”)
Court
October
and
is
17,
accompanying
Motion (“Cockrell Mem.”).
Plaintiff
2012
Peggy
Motion
Memorandum
Renee
for
of
Law
Cockrell’s
Attorney’s
Supporting
(See ECF Nos. 33 and 34.)
Fees
the
Defendant
Hartford Life and Accident Insurance Company (“Hartford”) filed
a Brief in Opposition to Plaintiff’s Motion for Attorney’s Fees
(“Resp.”) on November 5, 2012.
(See ECF No. 35.)
For the
reasons below, the Court GRANTS Plaintiff’s Motion.
I.
Facts and Procedural History
Plaintiff Cockrell brought suit against Defendant Hartford
to
recover
long-term
disability
benefits
under
29
U.S.C.
§
1332(a), §502 of the Employee Retirement Income Security Act of
1974
(“ERISA”).
(See
ECF
assertion
of
disability
discussed
in
the
No.
and
Court’s
1
(“Compl.”).)
the
grounds
September
30,
for
2012
Cockrell’s
her
suit
order
are
granting
Cockrell’s Motion for Judgment as a Matter of Law and remanding
the case to Hartford for further consideration.
31.)
(See ECF No.
Shortly after entry of that order, Plaintiff moved for
attorney’s
fees
in
the
U.S.C. § 1132(g)(1).
amount
of
$23,725.00
(Mot. ¶ 6.)
pursuant
to
29
Plaintiff’s counsel waives
all expenses incurred in this matter and seeks no reimbursement
for them under § 1132.
(Waggoner Aff., ECF No. 33-2.)
Cockrell invokes the five-factor test adopted by the Sixth
Circuit in Secretary of Department of Labor v. King to support
an award of attorney’s fees.
669
(6th
Cir.
1985)
(Cockrell Mem. 4-5); 775 F.2d 666,
(establishing
the
five-factor
test).
Hartford argues that Cockrell is not entitled to attorney’s fees
under
the
neutral
five-factor
or
weigh
test
against
because
an
award
the
of
relevant
fees.
factors
(Resp.
are
3-4.)
Hartford asserts that, if Cockrell is awarded fees, the amount
should
be
adjusted
downward
to
reflect
a
reasonable
proportional to Cockrell’s success on the merits.
II.
amount
(Resp. 5-7.)
Standard of Review
Section 1132(g) of Title 29 provides that a district court
has discretion to award attorney’s fees in an ERISA action:
2
In any action under this title . . . by a participant,
beneficiary, or fiduciary, the court in its discretion may
allow a reasonable attorney's fee and costs of action to
either party.
29 U.S.C. § 1132(g)(1).
In Hardt v. Reliance Std. Life Ins.
Co., the Supreme Court established a threshold for recovery
under §1132(g)(1):
[A] fees claimant must show "some degree of success on the
merits" before a court may award attorney's fees under §
1132(g)(1). A claimant does not satisfy that requirement by
achieving "trivial success on the merits" or a "purely
procedural victor[y]," but does satisfy it if the court can
fairly call the outcome of the litigation some success on
the merits without conducting a "lengthy inquir[y] into the
question whether a particular party's success was
'substantial' or occurred on a 'central issue.'"
130 S. Ct. 2149, 2158 (2010) (quoting Ruckelshaus v. Sierra
Club, 463 U.S. 680, 694 (1983)) (internal citations omitted).
Before Hardt, courts in the Sixth Circuit applied the fivefactor test established in King (known as the “King Factors”)
when deciding whether to award fees.
Heath v. Metro. Life Ins.
Co., 2011 U.S. Dist. Lexis 101504, at *6-8 (M.D. Tenn. Sept. 6,
2011).
The King Factors are:
(1) the degree of the opposing party's culpability or bad
faith; (2) the opposing party's ability to satisfy an award
of attorney's fees; (3) the deterrent effect of an award on
other persons under similar circumstances; (4) whether the
party requesting fees sought to confer a common benefit on
all participants and beneficiaries of an ERISA plan or
resolve significant legal questions regarding ERISA; and
(5) the relative merits of the parties' positions.
King, 775 F.2d at 669.
The Supreme Court in Hardt analyzed a
five-factor test used by the Fourth Circuit that was identical
3
to the test in King and held that the Fourth Circuit test was
not required.
The court said, however, that it “do[es] not
foreclose the possibility that once a claimant has satisfied
[the threshold] requirement, and thus becomes eligible for a
fees award under ERISA § 1132(g)(1), a court may consider the
five factors." Hardt, 130 S. Ct. at 2158 n.8.
Since Hardt,
courts in the Sixth Circuit have continued to consider the fivefactor test when deciding whether to award attorney’s fees, and
this Court will apply the test as a guide in exercising its
discretion.
See, e.g., Heath, 2011 U.S. Dist. LEXIS 101504, at
*9; Reese v. CNH Global N.V., No. 04-70592, 2011 U.S. Dist.
LEXIS 70607, at *9-11 (E.D. Mich. June 30, 2011); Loan v.
Prudential Ins. Co. of Am., 788 F. Supp. 2d 558, 562-65 (E.D.
Ky. 2011).
III. Analysis
A. Degree of Success on the Merits
To earn a fee award, Cockrell must have had “some degree of
success on the merits.”
Hardt, 130 S. Ct. at 2158.
fails to address this threshold requirement.
Cockrell
Post-Hardt case
law from the Sixth Circuit informs the Court’s discretion.
In
McKay v. Reliance Std. Life Ins. Co., the Sixth Circuit decided
that the Hardt threshold requirement of “some degree of success”
had been met by a plaintiff who had not yet won his benefits
claim, but had received “another shot” at benefits by winning a
4
remand.
428 Fed. Appx. 537, 546-47 (6th Cir. 2011) aff’g McKay
v. Reliance Std. Life Ins. Co., 654 F. Supp. 2d 731, 733-36
(E.D. Tenn. 2009).
Circuit
have
Since McKay, other district courts in the
reached
the
same
conclusion.
E.g.,
Hayden
v.
Martin Marietta Materials, Inc., 2012 U.S. Dist. LEXIS 156880,
at *9 (W.D. Ky. Oct. 30, 2012) (“[I]n the Sixth Circuit, a
remand constitutes ‘some success on the merits’ thereby making
an
award
of
attorneys'
fees
and
costs
available
under
§
1132(g)(1).”); Mullins v. Prudential Ins. Co. of Am., 2012 U.S.
Dist. LEXIS 43723, at *8 (W.D. Ky. March 28, 2012) (“We conclude
under the facts of this case that the remand ordered by this
court constituted ‘some degree of success on the merits,’ thus
rendering
the
plaintiff
eligible
for
an
award
of
attorneys
fees.”); Bio-Med. Applications of Ky., Inc. v. Coal Exclusive
Co., LLC, 2011 U.S. Dist. LEXIS 91187, at *7 (E.D. Ky. Aug. 15,
2011) ("The [McKay] court determined that the remand satisfied
Hardt's standard for 'success.'").
than
trivial
success
on
the
Cockrell “achieved far more
merits
or
purely
a
procedural
victory” when she persuaded this Court that Hartford’s decision
was arbitrary and capricious and that it should not be upheld
under ERISA.
omitted).
Hardt, 130 S. Ct. 2149 at 2159 (internal citations
She has met the threshold requirement and is eligible
for attorney’s fees under §1132(g)(1).
B. Five-factor Test
5
The King Factors guide the exercise of judicial discretion
when awarding attorney’s fees.
“Because no single factor is
determinative,
consider
the
court
must
exercising its discretion.”
each
factor
before
Schwartz v. Gregori, 160 F.3d 1116,
1119 (6th Cir. 1998).
1. Culpability or bad faith
This
Court
questioned
Hartford’s
review
process
in
its
opinion remanding for further review of Cockrell’s eligibility
for
long-term
opinions
of
disability
physicians
benefits.
who
Hartford
conducted
only
relied
paper
on
the
reviews
of
Cockrell’s case rather than the opinions of Cockrell’s treating
physicians,
Hartford
failed
disability
determination
to
take
made
adequate
by
the
account
Social
of
the
Security
Administration, and Hartford failed to explain its rejection of
that
determination
adequately.
(ECF
No.
31.)
The
Court
concluded that “Hartford’s benefits determination was not the
product
of
a
deliberate,
substantial evidence.”
whether
Hartford’s
because
Hartford
Cockrell’s claim.
(Id. 30.)
actions
is
principled
rise
culpable
461
F.3d
based
on
It is not necessary to decide
to
the
for
its
level
of
cursory
bad
faith
review
of
The Sixth Circuit has concluded that this
level of culpability is significant.
Corp.,
reasoning
639,
643-44
(6th
See Moon v. Unum Provident
Cir.
2006)
(reversing
the
district court and weighing the culpability factor in favor of
6
awarding attorney’s fees where the administrator's physician was
employed by the defendant and conducted only a paper review that
failed to take into account treating physicians' opinions); see
also Heffernan v. Unum Life Ins. Co. of Am., 101 Fed. Appx. 99,
*109
(6th
Cir.
June
11,
2004)
(unpublished
opinion)
(“An
arbitrary and capricious denial of benefits does not necessarily
indicate
culpability
[Defendant]
ignored
or
bad
faith.
overwhelming
However,
evidence
in
of
this
case,
[Plaintiff's]
disability, and, instead denied her claim based on a theory that
lacked
legitimate
culpability,
the
foundation.”).
first
factor
Because
favors
an
of
award
Hartford’s
of
attorney’s
fees.
2. Ability to satisfy award
Hartford does not dispute that it has the ability to pay an
award of fees.
been
used
by
(Resp. 3.) Hartford notes that this factor has
courts
in
the
Sixth
Circuit
for
exclusionary
purposes. (Id., citing Warner v. DSM Pharma Chems. N. Am., Inc.,
452 F. App’x 677, 681-82 (6th Cir. 2011)).
The factor “is
clearly not dispositive by itself and must be weighed alongside
the remaining King factors in determining the merits of a fee
award.” Elliott v. Metro. Life Ins. Co., 2007 U.S. Dist. LEXIS
38893, at *9 (E.D. Ky. May 29, 2007); see Firestone Tire &
Rubber Co. v. Neusser, 810 F.2d 550, 557-58 (6th Cir. 1987).
7
Although Hartford’s ability to pay in a case of this nature may
not carry the greatest weight, this factor favors a fee award.
3. Deterrent effect
The deterrent effect of a fee award in a case of this kind
is likely to be significant because the Court finds Hartford
culpable. Cockrell argues that an award of attorney’s fees will
“deter
ERISA
claims
fiduciaries
from
performing
investigations that lead to denial of benefits.”
Mem. 5.)
cursory
(Cockrell’s
It is clear that awarding attorney’s fees in this case
would deter future arbitrary and capricious conduct.
See McKay,
654 F. Supp. 2d at 738 (finding specific and general deterrence
due to defendant's arbitrary and capricious conduct). Such an
award would favorably affect the process by which fiduciaries
conduct reviews of long-term disability claims by encouraging
them to provide full and fair reviews of all claims or suffer
the consequences of paying more than the amount of benefits
originally denied.
This factor favors the award of fees.
4. Common benefit
Although there is no evidence that Cockrell brought this
ERISA action in an attempt to confer a benefit on other
participants or to resolve a significant legal question
regarding ERISA, she contends that “it would benefit all future
participants of the ERISA plan to have Hartford’s benefits
determination made on deliberate, principled reasoning as
8
opposed to cursory investigation.” (Cockrell’s Mem. 5.)
Hartford argues that Cockrell’s contention is insufficient
because she filed the action to recover disability benefits
denied her and because “any benefit conferred on future
claimants was merely ‘incidental’” to her claims.
(Resp. 4
(quoting Thies v. Life Ins. Co. of N. Am., 839 F. Supp. 2d 886,
893 (W.D. Ky. 2012)).)
Courts in the Sixth Circuit have concluded that, when a
plaintiff brings suit solely for personal benefit, she does not
seek to confer a common benefit on all plan participants.
(See,
e.g., Gaeth v. Hartford Life Ins. Co., 538 F.3d 524, 533 (6th
Cir. 2008) (noting that the effect of discouraging plan
administrators from
“making similarly unreasonable decisions in
the future” is a deterrent effect and does not constitute a
“common benefit” for purposes of the King analysis); Shelby
County Health Care Corp. v. Majestic Star Casino, LLC Group
Health Benefit Plan, 581 F.3d 355, 378 (6th Cir. 2009) (“Where a
claimant seeks benefits only for himself, we generally have
found the common-benefit factor to weigh against an attorney-fee
award.”); Hayden, 2012 U.S. Dist. LEXIS 156880, at *16-17
(“Although the Court's findings in its decision to remand might
be useful to plaintiffs in future cases, there is no indication
that Plaintiff sought to bring her case for that purpose. That
is, any points of law resulting from this case that might
9
benefit other beneficiaries are merely incidental to Plaintiff's
ultimate goal of obtaining the benefits of her policy for
herself.”)
Cockrell does not claim she brought suit to resolve
significant legal questions regarding ERISA, nor would such a
claim have merit given prior decisions in this Circuit.
(See
Gaeth, 538 F.3d at 533 (finding that a case in which the dispute
is whether the insurer’s decision to terminate benefits was
arbitrary and capricious does not turn on the resolution of a
difficult ERISA question); Mullins, 2012 U.S. Dist. LEXIS 43723,
at *12 (“[Plaintiff’s] suit was filed and litigated for his
personal benefit. No new legal ground was broken here.”). This
factor weighs against awarding attorney’s fees.
5. Merits of the case
Cockrell’s position is stronger than Hartford’s because
Hartford acted arbitrarily and capriciously in its decision to
deny Cockrell benefits and did so in a culpable manner.
(See
Moon, 461 F.3d at 646 (finding that the merits factor favored a
plaintiff whose long-term disability benefits were terminated
arbitrarily and capriciously by a culpable party)).
Hartford
argues that the merits factor weighs against an attorney’s fee
award because this Court found there was no bias or conflict of
interest in Hartford’s review and that it was unclear whether
Cockrell was entitled to benefits.
10
(Resp. 4.)
Hartford cites a
district court decision in which the court weighed this factor
against an attorney’s fee award because it found that the merits
of the claimant’s position were questionable and that there was
a possibility that the plan administrator could ultimately
prevail.
Bowers v. Hartford Life & Accident Ins. Co., No. 2:09-
CV-290, 2010 U.S. Dist. LEXIS 114663, at *13-14 (S.D. Ohio Oct.
19, 2010) (citing Gaeth, 538 F.3d at 534).
In Gaeth, the Sixth Circuit found that a district court
could have weighed the merits factor against an award of
attorney’s fees in a case in which the insurer ultimately could
have prevailed. 538 F.3d at 534.
The court “noted,
significantly, that the record contained minimal objective
medical evidence of [the plaintiff’s] continued disability." Id.
(internal quotations omitted). This Court, although finding that
Cockrell’s entitlement to benefits was unclear and questioning
the full extent of Cockrell’s injuries, did not, in its remand,
find that there was minimal medical evidence to support
Cockrell’s claim. The Court remanded the case because there was
medical evidence that Hartford failed to consider adequately in
its review.
Cockrell’s position is stronger than Hartford’s and
guides the Court in weighing this factor in favor of an award of
attorney’s fees.
The totality of the King analysis under the circumstances
of this case favors an attorney’s fee award to Cockrell.
11
C. Fees to Which Plaintiff Is Entitled
Cockrell seeks a total fee of $23,725.00, representing the
lodestar (hourly rate multiplied by the number of hours worked).
(Mot. 2.) Cockrell’s fee request is supported by an Exhibit
containing the detailed invoice she received from her attorney
(“Exhibit A”). (ECF No. 33-1.) Cockrell has also submitted an
Affidavit of her attorney, Gerald D. Waggoner, confirming the
invoice and stating his customary fee (“Exhibit B”), and an
Affidavit of John L. Dolan, a Memphis-area attorney, supporting
the fee award requested (“Exhibit C”).
(ECF Nos. 33-2 and 33-
3.)
Hartford
has
contested
the
reasonableness
of
the
fee
requested based on the allegedly excessive number of hours spent
litigating the matter and the degree of Cockrell’s success on
the merits.
(Resp. 5-7.)
1. Reasonableness of lodestar figure
In
determining
a
reasonable
attorney’s
fee,
it
is
well
established that the “lodestar” approach is the proper method
for calculating the award.
Building Serv. Local 47 Cleaning
Contractors Pension Plan v. Grandview Raceway, 46 F.3d 1392,
1401 (6th Cir. 1995).
When using the lodestar approach, “in
which ‘the number of hours reasonably expended on litigation
[is] multiplied by a reasonable hourly rate,’ . . . ‘[t]here is
a strong presumption’ that this lodestar figure represents a
12
reasonable fee.”
Heath, 2011 U.S. Dist. LEXIS 101504, at *23-24
(internal citations omitted).
Hartford
Cockrell’s
submitted
does
not
attorney,
for
challenge
but
specific
the
claims
tasks
is
hourly
that
the
rate
charged
number
by
hours
(Resp.
unreasonable.
of
5-7.)
Cockrell, the party seeking an award of attorney’s fees, “has
the burden of demonstrating the reasonableness of hours,” and
Hartford
“has
the
burden
of
producing
evidence
against
this
reasonableness.” Elec. Energy, Inc. v. Lambert, 2011 U.S. Dist.
LEXIS 53018, at *12 (W.D. Tenn. May 17, 2011).
court
may
reduce
the
award
accordingly”
if
presents inadequate documentation of hours.
461
U.S.
424,
reasonableness,
433
a
(1983).
court
should
In
exclude
“[T]he district
a
fee
applicant
Hensley v. Eckhart,
reviewing
from
its
claims
for
calculation
hours that are “excessive, redundant, or otherwise unnecessary.”
Id.
Based
on
a
review
of
the
affidavits
and
the
invoice
submitted by Cockrell, a majority of the time documented in this
case is reasonable.
In all but a few instances, Cockrell has
met her burden of demonstrating that the fee requested and hours
spent are not excessive.
Some time submitted was unnecessary.
Counsel for Cockrell submitted two entries of two hours
each to prepare a motion to appear in forma pauperis, a summons,
an application to proceed without prepaying, and the complaint.
13
(Exhibit
A,
Entries
dated
02/24/2011
and
02/25/2011.)
Four
hours is not a reasonable time to prepare those documents.
The
paperwork for a motion to appear in forma pauperis and a summons
is minimal, and counsel has separately reported spending 5.5
hours
preparing
a
dated
02/24/2011
three-page
and
written
02/25/2011
complaint.
are
The
redundant.
entries
The
fee
requested is reduced by $500.00, representing the elimination of
one two-hour time entry.
The Court also finds that the time submitted for reviewing
three surveillance videos is not reasonable.
Cockrell’s counsel
recorded
period
thirteen
hours
over
a
three-day
to
review
surveillance videos that contained a total of approximately one
hour and ten minutes of video footage.
(Exhibit A, Entries
dated 01/03/2012, 01/04/2012, and 01/05/2012; Resp. 6.)
The
Court finds that excessive and concludes that five hours is a
reasonable
time
videos.
The
to
view
requested
and
fee
make
is
notes
on
reduced
the
by
surveillance
an
additional
$2,000.00, representing the elimination of eight hours.
2. Reduction of fees due to plaintiff's "limited
success"
The appropriate lodestar figure in this case is $21,225.00.
Hartford
asserts
that
Cockrell
should
be
awarded
half
the
requested attorney’s fee because obtaining a remand represents
only partial success.
(Resp. 6.)
14
Hartford cites two unreported
cases from the Eastern District of Michigan in which courts
reduced attorney’s fee awards by fifty percent on finding that a
plaintiff
who
seeks
disability
benefits
but
whose
case
is
remanded for review has obtained only partial success and is
entitled to a partial award of attorney’s fees.
See Weaver v.
Dow Corning Corp., No. 07-CV-10984, 2009 U.S. Dist. LEXIS 75430,
at *10-12 (E.D. Mich. Aug. 25, 2009); Blajei v. Sedgwick Claims
Mgmt.
Services,
Inc.,
No.
09-13232,
2010
U.S.
102793, at *37-38 (E.D. Mich. Sept. 28, 2010).
Dist.
LEXIS
Both of these
cases were decided before Mckay, 428 F. App’x at 546-47.
Here, the Court granted judgment as a matter of law in
Cockrell’s favor. Although remand may not have been the relief
initially sought, it was a form of relief in Cockrell’s favor.
This
case
is
similar
to
Heath,
in
which
a
district
court
declined to award benefits, but remanded the case for further
review.
In its decision to grant the plaintiff full attorney’s
fees, the court noted that it remanded the case because factual
issues
were
unresolved
“limited
success”
company’s
failure
and
because
to
that
it
analyze
remand
was,
the
in
did
part,
plaintiff’s
not
the
constitute
insurance
medical
record
adequately during its initial review that required the remand.
The court reasoned that:
It would seem absurd to classify the a [sic] decision to
remand the case back to Defendant for further review as
"limited success" in this situation: this would allow
15
Defendant to benefit from a reduction in attorney fees when
it was Defendant's failure to consider and adequately
analyze the Plaintiff's medical record that made judgment
in Plaintiff's favor impossible. It cannot be that an
inadequate review that produces an insufficient basis for a
benefits decision by the insurer or the court can result in
a fee reduction due to the plaintiff's limited success in
court.
Heath, 2011 U.S. Dist. LEXIS 101504, at *35-36.
Although this Court did not grant Cockrell’s request for
disability
benefits,
it
did
find
that
Hartford’s
benefits was arbitrary and capricious. (ECF No. 31.)
questioned
Hartford’s
deficiencies
decision
in
determination
Hartford’s
inadequate.
disability
benefits
review
The
because
and
that
did
several
grant
factual
not
issues
of
The Court
cited
practices
Court
denial
made
its
Cockrell
needed
to
be
clarified and Hartford’s cursory review did not provide a proper
basis for a benefits determination.
Hartford may not benefit
from
fee
a
reduction
Hartford’s
in
inadequate
an
attorney’s
and
cursory
review
award
that
when
it
prompted
was
this
litigation. Cockrell, like the plaintiff in Heath, has achieved
a
level
of
success
in
securing
a
remand
of
her
case
that
entitles her to an undiluted award of attorney’s fees.
IV.
Conclusion
For the foregoing reasons, Cockrell’s Motion is GRANTED.
Cockrell is awarded a reasonable attorney’s fee of $21,225.00.
16
So ordered this 15th day of May, 2013.
s/ Samuel H. Mays, Jr.___
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
17
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