Averbeck, Tamara v. The Lincoln National Life Insurance Company
Filing
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OPINION and ORDER: Plaintiff Tamara Averbeck is entitled to recover her reasonable actual attorney fees, expenses, and costs. Averbeck has until September 30, 2022, to submit either a stipulation on the amount of fees, expenses, and costs, or a pro perly supported request for fees and expenses and a bill of costs. Defendant The Lincoln National Life Insurance Company has until October 10, 2022, to file any objection to Averbeck's request. Signed by District Judge James D. Peterson on 8/30/22. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
TAMARA AVERBECK,
Plaintiff,
v.
OPINION and ORDER
THE LINCOLN NATIONAL
LIFE INSURANCE COMPANY,
20-cv-420-jdp
Defendant.
Plaintiff Tamara Averbeck brought this lawsuit under the Employee Retirement
(ERISA) after defendant The Lincoln National Life Insurance Company terminated her longterm disability and life insurance benefits and denied her appeal. Four months after filing suit,
Lincoln reinstated her benefits and also paid her back benefits.
The question now before the court is whether Averbeck is entitled to attorney fees. In
a previous order, I directed her to show cause why the case should not be dismissed without
payment of her attorney fees. Dkt. 24.
The ERISA fee-shifting statute gives the court discretion to award reasonable attorney
fees to either party. 29 U.S.C. § 1132(g)(1). But the court’s discretion is not unlimited. To be
eligible for attorney fees, the party must show “some degree of success on the merits.” Hardt v.
Reliance Standard Life Ins. Co., 560 U.S. 242, 245 (2010). In Hardt, the Supreme Court
explained that to meet this standard, a party does not need to reach “prevailing party” status,
which would mean that the party had won a judgment in its favor. But a party must gain
something more than “trivial success on the merits” or a “purely procedural victory.” Id. at 255.
The standard is satisfied “if the court can fairly call the outcome of the litigation some success
on the merits without conducting a lengthy inquiry into the question whether a particular
party’s success was substantial’ or occurred on a ‘central issue.’” Id. (citations omitted).
In this case, Lincoln National restored Averbeck’s benefits before the court ruled on the
merits of her ERISA benefits claim. In my order to show cause, I told Averbeck that to show
some success on the merits in the absence of such a ruling, she must show that her litigation
effort and the merits of her case led to Lincoln’s award of benefits. Dkt. 24.
The court has reviewed the parties’ submissions in response to the order to show cause
and concludes that Averbeck meets the standard in Hardt. She has demonstrated that the
merits of her case are strong. Her complaint is thorough and detailed. Dkt. 1. In response to
my order, Averbeck submitted a declaration discussing her disability and severe workplace
limitations stemming from a 2007 motor vehicle accident. Dkt. 30. She says that the Social
Security Administration determined that she was disabled and awarded her disability benefits
under a similar standard to Lincoln National’s. Dkt. 30-6. She identified specific errors with
Lincoln National’s decisions at each stage in the benefits determination process. Dkt. 28,
20−23. For example, she identifies key medical records that Lincoln National failed to consider
in its benefits determinations and she points out where Lincoln National drew inaccurate
conclusions and misrepresented her medical information. Id. She makes the common-sense
argument that an insurer generally does not reinstate benefits to an individual with a meritless
claim. Id., at 27. Finally, she notes that Lincoln National overturned her benefits denial under
a more stringent standard than applied to its original decision. Id., at 27–28; Dkt. 30-15.
Averbeck received the relief she sought because of her litigation efforts and the strength of her
case.
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The court also considers whether Lincoln National’s position on Averbeck’s award
eligibility is “substantially justified.” Temme v. Bemis Co., 762 F.3d 544, 550 (7th Cir. 2014).
All Lincoln National says about its decision to restore Averbeck’s benefits is that it was
“voluntary.” E.g., Dkt. 31, at 15. But it does not explain or adduce evidence showing how or
why it made this decision. Lincoln National also contends that Averbeck’s litigation efforts
were so minimal that they could not have contributed to the benefits reinstatement.
Specifically, it says that Averbeck submitted only four filings to the court, three of them
routine, between the time that she filed her complaint and Lincoln National restored her
benefits. But that really suggests that Averbeck’s case was strong enough that she did not need
much in the way of litigation beyond the initial complaint to prompt Lincoln National to
conclude that she could prevail.
Averbeck is entitled to her reasonable attorney fees, expenses, and costs. Averbeck’s fees
should be relatively modest. The court encourages the parties to reach agreement on the
amount. If the parties are unable to agree, Averbeck has until September 30, 2022, to file a
properly supported request for fees and expenses and a bill of costs. (For instructions on
preparing the request, see Dkt. 14, Preliminary Pretrial Packet, at 39.)
ORDER
IT IS ORDERED that:
1. Plaintiff Tamara Averbeck is entitled to recover her reasonable actual attorney fees,
expenses, and costs.
2. Averbeck has until September 30, 2022, to submit either a stipulation on the
amount of fees, expenses, and costs, or a properly supported request for fees and
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expenses and a bill of costs. Defendant The Lincoln National Life Insurance
Company has until October 10, 2022, to file any objection to Averbeck’s request.
Entered August 30, 2022.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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