Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

David Kersh v. Manulife Financial Corporation

October 5, 2011

DAVID KERSH, PLAINTIFF,
v.
MANULIFE FINANCIAL CORPORATION, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Barry M. Kurren United States Magistrate Judge

FINDINGS AND RECOMMENDATION THAT DEFENDANTS' MOTION FOR ATTORNEYS' FEES BE GRANTED IN PART AND DENIED IN PART

Before the Court is Defendants Manulife Financial Corporation, John Hancock Financial Services, Inc., and North American Life Assurance Co.'s (collectively, "Defendants") Motion for Attorneys' Fees. (Doc. # 85.) After careful consideration of the motion, the supporting and opposing memoranda, and the attached documentation, the Court FINDS and RECOMMENDS that Defendants' motion be GRANTED IN PART and DENIED IN PART. Specifically, the Court RECOMMENDS that Defendants be awarded $50,000 in attorneys' fees.*fn1

BACKGROUND

On February 4, 2009, Plaintiff David Kersh filed this action against Defendants seeking damages stemming from a life insurance policy he purchased from Defendants in 1978. (Order Granting Def.'s Mot. for Summ. J., Doc. # 82 at 1-2.) Plaintiff asserted that he purchased a "universal life insurance policy," which required him to make specific payments within the first seven years of the policy. (Id. at 2.) In contrast, Defendants asserted that Plaintiff purchased a "whole life insurance policy," which required him to make annual payments, and that his life insurance policy lapsed after he failed to make payments in 1984. (Id. at 1-2.) In his First Amended Complaint ("complaint"), Plaintiff asserted claims for breach of contract (Count I), unfair business practices in violation of Hawai'i Revised Statutes ("HRS") § 480-2 (2008) (Count II), recklessness (Count III), misrepresentation (Count IV), and intentional infliction of emotional distress (Count V). (Id. at 6-7.) Defendants moved for summary judgment in part on the grounds that Plaintiff's claims were time barred. (Id. at 2.) Following a hearing, District Judge J. Michael Seabright granted Defendants' motion for summary judgment concluding in relevant part that: 1) Plaintiff's breach of contract claim was untimely because, under the two recognized approaches to analyzing the timeliness of a claim for the breach of a life insurance policy, his claim was either premature or barred by the applicable statute of limitations; 2) Plaintiff did not produce any evidence supporting his argument that the statute of limitations was tolled because of illness, fraudulent concealment, or Defendants' lulling him into inaction; and 3) Counts II, IV and V of Plaintiff's complaint were barred by the applicable statutes of limitations, and Plaintiff's tolling arguments were not persuasive. (Id. at 12-26.)

Following the entry of judgment in favor of Defendants (Doc. # 83), Defendants filed the present Motion for Attorneys' Fees requesting $119,274.30 in attorneys' fees. (Mem. in Supp. of Mot. for Att'y Fees, Doc. # 85 at 13.) Specifically, Defendants assert that they are entitled to attorneys' fees on the grounds that: 1) HRS § 607-14 (Supp. 2010) provides that reasonable fees "shall be" taxed against the losing party "in all actions in the nature of assumpsit" and therefore Defendants are entitled to fees on Plaintiff's breach of contract claim; 2) Plaintiff's remaining claims were frivolous and HRS § 607-14.5(a) (Supp. 2010) allows an award of attorneys' fees "upon a specific finding that all or a portion of the party's claim or defense was frivolous . . . [;]" and 3) alternatively, HRS § 607-14 authorizes the award of fees for Plaintiff's remaining claims because the "gravamen of Plaintiff's claim" is that Defendants breached the life insurance policy. (Id. at 5-12.) For the following reasons, this Court concludes that Defendants are not entitled to fees under HRS § 607-14.5 because there has not been a finding of frivolousness. See HRS 607-14.5(b) ("the court must find in writing that all or a portion of the claims or defenses made by the party are frivolous and are not reasonably supported by the facts and the law in the civil action."). However, Defendants are entitled to $50,000 of their attorneys' fees under HRS § 607-14.

DISCUSSION

I. Entitlement to Attorneys' Fees

A federal court sitting in diversity must apply state law in determining whether a party is entitled to an award of attorneys' fees. Farmers Ins. Exch. v. Law Offices of Conrado Joe Sayas, Jr., 250 F.3d 1234, 1236 (9th Cir. 2001). Under Hawaii law, attorneys' fees may be awarded to a prevailing party when "provided for by statute, stipulation, or agreement." DFS Group L.P. v. Paiea Props., 131 P.3d 500, 502 (Haw. 2006) (block quote formatting omitted) (emphasis omitted) (quoting TSA Int'l, Ltd. v. Shimizu Corp., 990 P.2d 713, 733 (Haw. 1999)).

A. Prevailing Party

HRS § 607-14 allows the award of attorneys' fees to the prevailing party in an action in the nature of assumpsit. Hawaii courts have held that, "[i]n general, a party in whose favor judgment is rendered by the district court is the prevailing party in that court, plaintiff or defendant, as the case may be." MFD Partners v. Murphy, 9 Haw. App. 509, 514, 850 P.2d 713, 716 (Ct. App. 1992) (citations and internal quotation marks omitted). Because Judge Seabright granted Defendants' motion for summary judgment as to all of Plaintiffs' claims, Defendants are the prevailing parties. (Order Granting Defs.' Mot. for Summ. J., Doc. # 82 at 12-26.)

B. Statutory Basis

Defendants have demonstrated that they are entitled to attorneys' fees with respect to Plaintiff's contract claim under HRS § 607-14, which provides:

In all the courts, in all actions in the nature of assumpsit . . . , there shall be taxed as attorneys' fees, to be paid by the losing party and to be included in the sum for which execution may issue, a fee that the court determines to be reasonable; provided that the attorney representing the prevailing party shall submit to the court an affidavit stating the amount of time the attorney spent on the action and the amount of time the attorney is likely to spend to obtain a final written judgment, or, if the fee is not based on an hourly rate, the amount of the agreed upon fee. The court shall then tax attorneys' fees, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.