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Hanover Insurance Co. v. Anova Food, LLC

United States District Court, D. Hawaii

October 24, 2016

THE HANOVER INSURANCE COMPANY; MASSACHUSETTS BAY INSURANCE COMPANY, Plaintiffs,
v.
ANOVA FOOD, LLC, Defendant. ANOVA FOOD, LLC, Counter-Claimant,
v.
THE HANOVER INSURANCE COMPANY; MASSACHUSETTS BAY INSURANCE COMPANY, Counter-Defendants.

          ORDER ON REMAINING ISSUES REGARDING THE ZOBRIST LAW FIRM'S ATTORNEYS' FEES

          Helen Gillmor Judge

         The Court previously ruled that the Hanover Companies are required to pay reasonable attorneys' fees incurred by the Zobrist Law Firm in defending Anova Food, LLC between October 12, 2012 and December 10, 2013 in the Underlying Lawsuit filed in the United States District Court for the District of Hawaii, Kowalski v. Anova Food, LLC, et al., Civ. No. 11-00795HG-RLP.

         The Court previously ordered the Parties to provide additional briefing as to their on-going dispute as to the attorneys' fees owed to the Zobrist Law Firm. The briefing left many unanswered questions. Further briefing is required.

         BACKGROUND

         Defendant/Counter-Claimant Anova Food, LLC (“Anova LLC”) was covered by Plaintiffs/Counter-Defendants the Hanover Insurance Company and Massachusetts Bay Insurance Company's (“the Hanover Companies”) four commercial liability insurance policies that were in effect between July 1, 2010 and July 11, 2014. (See Insurance Policies attached as Exs. B, C, D to Pla.'s First Amended Complaint, ECF Nos. 39-2-6).

         THE UNDERLYING LAWSUIT

         On December 29, 2011, the Underlying Lawsuit, William R. Kowalski; Hawaii International Seafood, Inc. v. Anova Food, LLC; Anova Food, Inc., et al., Civ. No. 11-00795HG-RLP, was filed against Anova LLC.

         On October 12, 2012, Anova LLC requested the Hanover Companies provide it a defense to the Underlying Suit pursuant to the relevant insurance policies. (Declaration of Darren Zobrist (“Zobrist Decl.”) at ¶ 6, ECF No. 75).

         On December 13, 2012, the Hanover Companies agreed to provide a defense to Anova LLC pursuant to a reservation of rights, as long as Anova LLC's attorneys agreed to “comply with Hanover's Litigation Guidelines.” (Letter from Hanover Regional Liability Adjuster Stephen E. Colville, dated December 13, 2012, ECF No. 75-4).

         Anova LLC agreed to have the Hanover Companies defend it in the Underlying Lawsuit. At that point, Anova LLC was represented by both Attorney Gary Grimmer and the Zobrist law firm. (Zobrist Decl. at ¶¶ 5-6, ECF No. 75; Declaration of Craig E. Marshall, member of the Zobrist Law Group, (“Marshall Decl.) at ¶¶ 6-8, ECF No. 104; Letter from Hanover Regional Liability Adjuster Stephen E. Colville, dated December 10, 2013, to counsel for Anova LLC at pp. 4-5, ECF No. 75-5).

         The Court ruled in its June 29, 2016 Order that Anova LLC is entitled to reasonable attorneys' fees incurred by the Zobrist law firm between October 12, 2012 until December 10, 2013. (June 29, 2016 Order Denying the Hanover Companies' Motion for Summary Judgment and Granting, In Part, and Denying, In Part, Anova LLC's Motion for Partial Summary Judgment at pp. 49-55, ECF No. 151).

         The Court held that the Hanover Companies are required to pay the reasonable attorneys' fees incurred by the Zobrist law firm starting from October 12, 2012, which was the date when Anova LLC requested a defense from the Hanover Companies. (Id. at p. 55). The Court held that the Hanover Companies were required to pay the attorneys' fees for the Zobrist law firm until December 10, 2013, which was the date the Hanover Companies decided to provide different counsel to Anova LLC in the Underlying Lawsuit. (Id.)

         Anova LLC claims that the Hanover Companies have not paid the Zobrist Law Firm's reasonable attorneys' fees. Anova LLC claims that it submitted bills to the Hanover Companies for fees incurred by the Zobrist Law Firm in the amount of $699, 778, for which the Hanover Companies paid only $284, 624, leaving a balance owed of $385, 153.

         The Hanover Companies assert that their billing guidelines are the basis for how attorneys fees should be calculated. The Hanover Companies assert that they already paid $284, 624 to the Zobrist Law Firm and that no balance is owed because the remaining fees billed did not comply with their billing guidelines and were unreasonable.

         STANDARD OF REVIEW

         The Supreme Court of Florida has found that the federal lodestar approach provides an objective structure to determine reasonable attorney fees. Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145, 1149-50 (Fla. 1985). Pursuant to Florida law, courts determine reasonable attorney fees by analyzing the following criteria:

(1) The time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly;
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other ...

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