United States District Court, D. Hawaii
THE HANOVER INSURANCE COMPANY and MASSACHUSETTS BAY INSURANCE COMPANY, Plaintiffs,
ANOVA FOOD, LLC and ANOVA FOOD, INC., Defendants.
FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY
IN PART ANOVA FOOD, LLC'S MOTION FOR AWARD OF
ATTORNEYS' FEES AND COSTS 
RICHARD L. PUGLISI, UNITED STATES MAGISTRATE JUDGE.
the Court is Anova Food, LLC's (“Anova LLC”)
Motion for Award of Attorneys' Fees and Costs, filed on
June 23, 2017 (“Motion”). See ECF No.
224. Anova LLC requests an award of $539, 077.78 for
attorneys' fees and costs as the prevailing party
pursuant to Florida Statutes Section 627.428. ECF No. 225.
The Hanover Insurance Company and Massachusetts Bay Insurance
Company (“Hanover Companies”) filed their
Opposition on August 25, 2017. ECF No. 243. Anova LLC filed
its Reply on September 22, 2017. ECF No. 246. After careful
consideration of the submissions of the parties and the
relevant legal authority, the Court FINDS AND RECOMMENDS that
Anova LLC's Motion be GRANTED IN PART AND DENIED IN PART.
Hanover Companies filed this declaratory judgment action
asking the court to determine their duty to defend and duty
to indemnify Anova LLC in connection with Kowalski v.
Anova Food, LLC, Civil No. 11-00795 HG-RLP
(“Underlying Lawsuit”) pursuant to various
insurance policies. In the Underlying Lawsuit, the Hanover
Companies tendered a defense and provided counsel for Anova
LLC. The Underlying Lawsuit was settled in March 2015.
action, the court granted summary judgment in favor of Anova
LLC on the Hanover Companies' duty to defend Anova LLC in
the Underlying Lawsuit. See ECF No. 113. However,
the court found that Anova LLC was not entitled to fees
incurred before it requested a defense from the Hanover
Companies. Id. The Court held that Anova LLC was
entitled to certain attorneys' fees incurred after it
requested a defense. Id.; ECF No. 151 at 48-55.
After a second round of motions for summary judgment, the
court determined that Anova LLC was entitled to
indemnification on some of the claims asserted in the
Underlying Lawsuit, but held that neither party was entitled
to recover the money that they contributed to the settlement
of the Underlying Lawsuit. See ECF No. 151. The
court also denied Anova LLC's claim for bad faith. ECF
Entitlement to Attorneys' Fees and Costs
Florida Statute Section 627.428, if an insured obtains
judgment against its insurer, the insured is entitled to
“a reasonable sum as fees or compensation for the
insured's  attorney prosecuting the suit in which the
recovery is had.” Fla. Stat. § 627.428(1).
Entitlement to Fees Incurred in Connection with the
addition to the fees that it incurred in this action, Anova
LLC also seeks to recover a portion of the attorneys'
fees that it incurred in defending the Underlying Lawsuit.
ECF No. 225. Specifically, Anova LLC asks the Court to award
it 50% of the fees that it incurred for work performed by
Lane Powell, P.C. from September 2012 through March 2015 in
connection with the Underlying Lawsuit, which equals $69,
852.92. Id. at 19, 29. Under Florida law, an insured
may recover fees for pre-suit work if the work “was
necessitated by the insurer's unreasonable
conduct.” U.S. Fid. & Guar. Co. v. Rosado,
606 So.2d 628, 629 (Fla. Dist. Ct. App. 1992). Here, the
court expressly denied Anova LLC's bad faith claim
against the Hanover Companies. ECF No. 188. Accordingly, the
Court finds that Anova LLC is not entitled to recover
attorneys' fees for the work performed by Lane Powell,
P.C. in connection with the Underlying Lawsuit.
Entitlement to Attorneys' Fee Incurred After the Hanover
Companies Made a Settlement Offer
Florida law, an insured is entitled to its attorney's
fees under Section 627.428 only if it obtains a judgment
greater than any settlement offer made by the insurer.
Danis Indus. Corp. v. Ground Improvement Techniques,
Inc., 645 So.2d 420, 421 (Fla. 1994). For purposes of
determining whether the settlement offer exceeds the
insured's recovery, the Court must consider the
insured's damages plus any attorneys' fees, taxable
costs, and prejudgment interest incurred before the
insurer's offer. See State Farm Mutual Auto. Ins. Co.
v. Nichols, 932 So.2d 1067, 1074 (Fla. 2006). If the
insured does not recover more than the insurer's offer,
the insured is only entitled to “pre-offer fees under
section 627.428.” Nichols, 932 So.2d at 1075.
the Hanover Companies offered $355, 900 to settle this case
on July 6, 2016. See ECF No. 243 at 8. Accordingly,
the Court must consider whether Anova LLC's recovery
exceeded the $355, 900 settlement offer. Anova was awarded
$250, 971, which is $104, 929 less than the Hanover
Companies' settlement offer. See ECF No. 219.
However, the Court must also consider the attorneys'
fees, taxable costs, and prejudgment interest incurred by
Anova LLC before the offer. See Nichols, 932 So.2d
at 1074. Anova LLC submits that it had incurred more than
$370, 000 in fees, $4, 288 in costs, and $30, 367 in
prejudgment interest at the time of the settlement offer.
See ECF No. 225 at 19; ECF No. 246 at 6. As
discussed below, the Court ultimately finds that Anova LLC is
not entitled to recover the full amount of attorneys'
fees requested for this time period. However, even with the
appropriate reductions, Anova LLC's damages plus the
reasonable attorneys' fees, costs, and prejudgment
interest incurred as of the date of the Hanover
Companies' settlement offer exceeds the amount of the
settlement offer. Accordingly, Anova LLC is entitled to
recover its reasonable fees for the entirety of this case.
Calculation of ...