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Insurance Company of West v. Afford-A-Home, Inc.

United States District Court, W.D. Washington, Tacoma

February 18, 2015

INSURANCE COMPANY OF THE WEST, Plaintiff,
v.
AFFORD-A-HOME, INC, et al., Defendants.

ORDER GRANTING PLAINTIFF'S MOTION FOR ATTORNEY FEES

BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on Plaintiff Insurance Company of the West's ("ICW") motion for attorney fees (Dkt. 36). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion for the reasons stated herein.

I. PROCEDURAL HISTORY

On April 29, 2014, ICW filed an indemnification action against Defendants Afford-A-Home, Inc., Harold Janaszak, and Donna Janaszak ("Defendants"). Dkt. 1. On July 1, 2014, ICW moved for summary judgment. Dkt. 12. On December 2, 2014, the Court granted ICW's motion in part and denied it in part. Dkt. 33. On January 21, 2015, the Court entered judgment. Dkt. 35.

On January 27, 2015, ICW moved for attorney fees. Dkt. 36. On February 9, 2015, Defendants responded. Dkt. 40. On February 13, 2015, ICW replied. Dkt. 41.

II. DISCUSSION

ICW requests $14, 631.33 in attorney fees under Federal Rule of Civil Procedure 54(d)(2). Dkt. 36 at 1. In response, Defendants argue that ICW has not identified any contract provision or statute that authorizes attorney fees. Dkt. 40 at 2. Alternatively, Defendants argue that ICW's requested amount of fees should be reduced by at least half. Id. at 3-4.

Rule 54(d)(2) governs the procedure for recovering attorney fees in federal court. MRO Comm'ns, Inc. v. Am. Tel. & Tel. Co., 197 F.3d 1276, 1280 (9th Cir. 1999). In order to recover attorney fees under Rule 54(d)(2), the moving party must identify "the statute, rule, or other grounds entitling the movant to the award." Fed.R.Civ.P. 54(d)(2).

Here, ICW argues that it is entitled to attorney fees under the Indemnity Agreement, which was the subject of this action. Dkt. 36 at 1. ICW relies on the following provision in the Agreement:

1. Indemnity. The [Principal and Defendants] shall indemnify and keep indemnified [ICW] against any and all liability for losses and expenses of whatsoever kind or nature, including attorney fees and costs, by reason of having executed or procured the execution of Bonds, or by reason of the failure of the Principal or [Defendants] to perform or comply with the covenants and conditions of this Agreement.

Dkt. 14, Declaration of Leonard Huseby ("Huseby Dec."), Ex. 1 at 1. The Indemnity Agreement also includes another provision related to attorney fees:

21. Attorney Fees. If [ICW] commences any action or proceeding, including arbitration, against the [Principal and Defendants], or any of them, by reason of any breach or claimed breach of any provision of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover from the other party or parties its reasonable attorney fees and witness fees, and all other costs, whether or not the action or proceeding results in a judgment, and shall be entitled to recover its costs and attorney fees incurred in enforcing any judgment obtained.

Id. at 5.

Federal courts apply state law to interpret an attorney's fee provision in a contract. See Franklin Fin. v. Resolution Trust Corp., 53 F.3d 268, 273 (9th Cir. 1995). In Washington, courts look to the terms of the contract to determine if attorney fees are warranted. Kaintz v. PLG, Inc., 147 Wn.App. 782, 790 (2008). "Where the terms of a contract are plain and unambiguous, the intention of the ...


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