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Hanover Insurance Co. v. Anova Food, LLC

United States District Court, D. Hawaii

June 9, 2017

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 AWARDING ATTORNEYS' FEES INCURRED IN DEFENSE OF ANOVA FOOD, LLC

          HELEN GILLMOR, United States District Judge

         The Hanover Companies entered into an insurance contract that required them to defend Anova Food, LLC in an Underlying Lawsuit, Kowalski v. Anova Food, LLC, et al., Civ. No. 11-00795HG-RLP.

         The Court has already issued three written orders finding that the Hanover Companies are required to pay reasonable attorneys' fees for defending Anova Food, LLC in the Underlying Lawsuit.

         The Hanover Companies are responsible for the Zobrist Law Firm's attorneys' fees between October 12, 2012 and December 10, 2013.

         The Court has requested briefing on three separate occasions with respect to the outstanding attorneys' fees owed. The Parties agree that $284, 624.72 in attorneys' fees have already been paid.

         The Court FINDS that the Hanover Companies owe an additional $250, 971.41 in attorneys' fees for the defense of Anova Food, LLC in the Underlying Lawsuit.

         PROCEDURAL HISTORY

         On June 19, 2014, the Hanover Companies filed a Complaint. (ECF No. 1).

         On May 29, 2015, the Hanover Insurance Companies filed a First Amended Complaint. (ECF No. 39).

         On March 24, 2016, the Court issued an ORDER GRANTING, IN PART, AND DENYING, IN PART, DEFENDANT/COUNTERCLAIMANT ANOVA FOOD, LLC'S MOTION FOR PARTIAL SUMMARY JUDGMENT. (ECF No. 113).

         On June 23, 2016, the Court held a hearing on the Parties' Motions for Summary Judgment. (ECF No. 148). At the hearing, the Court instructed the Hanover Companies to file a Statement as to any remaining issues regarding the attorneys' fees owed to the Zobrist Law Firm. (Id.)

         On June 29, 2016, the Court issued an ORDER DISMISSING ALL CLAIMS AGAINST DEFENDANT ANOVA FOOD, INC. AND DENYING PLAINTIFFS THE HANOVER INSURANCE COMPANY AND MASSACHUSETTS BAY INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT AND GRANTING, IN PART, AND DENYING, IN PART, DEFENDANT ANOVA FOOD, LLC'S MOTION FOR PARTIAL SUMMARY JUDGMENT. (ECF No. 151).

         On June 30, 2016, the Hanover Companies filed PLAINTIFFS THE HANOVER COMPANY AND MASSACHUSETTS BAY INSURANCE COMPANY'S STATEMENT AS TO REMAINING ISSUES REGARDING THE ZOBRIST ATTORNEYS' FEES. (ECF No. 154).

         On July 14, 2016, the Court issued a Minute Order instructing Defendant Anova Food, LLC to respond to Plaintiff's Statement as to the Zobrist Law Firm's Attorneys' Fees. (ECF No. 171).

         On July 28, 2016, Anova Food, LLC filed a TRIAL MEMORANDUM IN SUPPORT OF THE REASONABLENESS OF ZOBRIST LAW'S ATTORNEYS' FEES. (ECF No. 177).

         On August 10, 2016, the Hanover Companies submitted its TRIAL MEMORANDUM IN SUPPORT OF THEIR STATEMENT AS TO REMAINING ISSUES REGARDING THE ZOBRIST ATTORNEYS' FEES. (ECF No. 185).

         On August 31, 2016, the Court issued a Minute Order denying Anova Food, LLC's Motion for Reconsideration. (ECF No. 187).

         On October 21, 2016, the Court issued an ORDER DENYING COUNTER-CLAIMANT ANOVA FOOD, LLC'S BAD FAITH CLAIM. (ECF No. 188).

         On October 24, 2016, the Court issued an ORDER ON REMAINING ISSUES REGARDING THE ZOBRIST LAW FIRM'S ATTORNEYS' FEES. (ECF No. 189).

         On November 28, 2016, the Hanover Companies filed PLAINTIFFS THE HANOVER INSURANCE COMPANY AND MASSACHUSETTS BAY INSURANCE COMPANY'S ACCOUNTING. (ECF Nos. 190-213).

         On December 28, 2016, Anova Food, LLC filed its RESPONSE TO THE HANVOER COMPANIES' ACCOUNTING. (ECF No. 214).

         On January 4, 2017, Anova Food, LLC filed a MOTION FOR EXTENSION OF TIME AND RESPONSE TO PLAINTIFFS-COUNTERCLAIM DEFENDANTS THE HANOVER COMPANIES' ACCOUNTING. (ECF No. 215).

         On January 11, 2017, the Court issued a Minute Order granting Anova Food, LLC's Motion for Extension and considered its Response. (ECF No. 217). The Court also allowed the Hanover Companies additional time to file its Reply. (Id.)

         On January 31, 2017, the Hanover Companies filed their Reply. (ECF No. 218).

         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).

         Anova LLC incurred attorneys' fees from the Zobrist Law Firm as a result of the Underlying Lawsuit filed against it in Kowalski v. Anova Food, LLC, et al., Civ. No. 11-00795HG-RLP.

         On March 24, 2016, the Court ruled that the Hanover Companies had a duty to defend Anova LLC in the Underlying Lawsuit. (March 24, 2016 Order Granting, In Part, and Denying, In Part, Defendant/Counter-Claimant Anova Food, LLC's Motion for Partial Summary Judgment at pp. 26-30, ECF No. 113).

         Due to the conflict in the evidence before the Court, there was no ruling as to the time period for which reasonable attorneys' fees were owed in the March 24, 2016 Order. (Id. at pp. 40-41).

         The Parties filed additional summary judgment motions that addressed the time period for which outstanding attorneys' fees were owed.

         On June 29, 2016, the Court issued an Order on the Parties' Motions for Summary Judgment and ruled that Anova LLC is entitled to reasonable attorneys' fees incurred by the Zobrist Law Firm from October 12, 2012 to 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 Parties disputed the amount of attorneys' fees that were “reasonable” for the period between October 12, 2012 and December 10, 2013. The Parties filed additional briefing as to the “reasonableness” of any additional attorneys' fees.

         On October 24, 2016, the Court issued another written order, entitled, “Order on Remaining Issues Regarding the Zobrist Law Firm's Attorneys' Fees.” The Court set forth the standard for awarding attorneys' fees and ordered additional briefing from the Parties. (October 24, 2016 Order on Remaining Issues Regarding the Zobrist Law Firm's Attorneys' Fees, ECF No. 189).

         The Parties filed the additional briefing requested.

         Outstanding Balance of Attorneys' Fees Owed

         The Zobrist Law Firm submitted five separate invoices to the Hanover Companies totaling $669, 778.17 in billings for attorneys' fees. (See Billing Invoices attached as Ex. E to Pla.'s Accounting, ECF No. 191-1-6).

         The Zobrist Law Firm was paid $284, 624.72[1] out of the $669, 778.17 in attorneys' fees it billed. (See Payment Receipts attached as Ex. F to Pla.'s Accounting, ECF No. 192-1-4; Declaration of Anova LLC Member Craig Marshall at ¶ 33, ECF No. 104).

         The Parties agree that attorneys' fees in the amount of $352, 121.46 remain in dispute as set forth in the table below. (Pla.'s Accounting at p. 9, ECF No. 190; Def.'s Response at p. 19, ECF No. 214).

ACCOUNTING OF ZOBRIST LAW FIRM ATTORNEYS' FEES

Total Zobrist Law Firm Billings

$ 669, 778.18

Fees Already Paid

- $ 284, 624.72

Pre- and Post-Tender Fees Not Recoverable

- $ 33, 032.00

OUTSTANDING FEES IN DISPUTE

$ 352, 121.46

         The Hanover Companies assert that the Zobrist Law Firm is not entitled to any of the remaining $352, 121.46 fees billed.

         Anova LLC argues that the Zobrist Law Firm is entitled to the entirety of the remaining $352, 121.46 for which they billed.

         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 employment by the lawyer;
(3) The fee customarily charged in the locality for similar legal services;
(4) The amount involved and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, and ability of the lawyer or lawyers performing ...

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