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Bunger v. Unum Life Insurance Co. of America

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

February 8, 2017

CHRIS BUNGER, Plaintiff,
v.
UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendant.

          ORDER

          Honorable Richard A. Jones United States District Judge

         I. INTRODUCTION

         This matter comes before the Court on Plaintiff Chris Bunger's Motion for Award of Fees and Costs Under 29 U.S.C. § 1132(g)(1). Dkt. # 25. Having reviewed the briefs submitted by the parties and the relevant portions of the record, the Court finds an award of attorney's fees and costs appropriate. For the reasons set forth below, the Court GRANTS in part and DENIES in part Plaintiff's motion.

         II. BACKGROUND

         The Court has detailed the background of this case in other Orders. See Dkt. # 24; Dkt. # 30. Briefly, Plaintiff brings this action under the Employee Retirement Income Security Act (“ERISA”), specifically under 29 U.S.C. § 1132(g)(1) and Federal Rule of Civil Procedure 54(d)(2).

         This Court previously denied Cross Motions filed by Plaintiff and Defendant Unum Life Insurance Company of America after parties requested a final judgment under Federal Rule of Civil Procedure 52. Dkt. # 24. Plaintiff's initial action, brought under 29 U.S.C. § 1001 et seq., sought to recover short-term disability benefits and long-term disability benefits under Plaintiff's employee benefits programs. Id. Plaintiff argued that he was totally disabled under the terms of both plans due to chronic fatigue syndrome, Lyme disease, or an unspecified illness which causes extreme fatigue and inability to concentrate. Id. Defendant argued that Mr. Bunger had no properly diagnosed conditions, and had not shown that he was unable to perform his job functions. Id.

         Based on the record, this Court was not able to determine whether Mr. Bunger is disabled, and the Court instructed Unum to inform Mr. Bunger of what additional testing or diagnostics it required in order to make an informed decision as to whether Mr. Bunger is able to perform his job functions. Id. As such, this Court remanded Mr. Bunger's case to Unum in order to further develop the record. Id.

         Plaintiff has now filed a Motion for Award of Fees and Costs Under 29 U.S.C. § 1132(g)(1); Plaintiff requests $75, 100.00 in fees and $743.48 in costs. Dkt. # 33. Defendant opposes the motion. Dkt. # 31.

         III. DISCUSSION

         In an ERISA action, the court has discretion to award reasonable attorneys' fees and costs to either party if the party seeking fees has achieved “some degree of success on the merits.” Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 255 (2010) (quoting Ruckelshaus v. Sierra Club, 463 U.S. 680, 694 (1983)); see also 29 U.S.C. § 1132(g)(1). However, a claimant does not satisfy this requirement by achieving “trivial success on the merits” or a “purely procedural victor[y].” Hardt, 560 U.S. at 255.

         A claimant satisfies the Hardt standard “if the court can fairly call the outcome of the litigation some success on the merits without conducting a lengthy inquiry into the question whether a particular party's success was ‘substantial' or occurred on a ‘central issue.'” Hardt, 560 U.S. at 255 (internal quotation marks omitted) (brackets omitted). Notably, the Supreme Court in Hardt did not decide “whether a remand order, without more, constitutes ‘some success on the merits' sufficient to make a party eligible for attorney's fees under § 1132(g)(1).” Id. at 256.

         A. Some Degree of Success on the Merits

         The Ninth Circuit has not yet determined whether a remand to the plan administrator is sufficient “success on the merits” to establish eligibility for fees under 29 U.S.C. § 1132(g)(1). Plaintiff argues that he is entitled to a fee award under Hardt, and cases interpreting Hardt, because a remand is a sufficient degree of success. Dkt. # 25 at 3. Defendant argues that a remand to the administrator, without more, is not sufficient success to warrant a fee award. Dkt. # 31 at 3.

         Contrary to Defendant's argument, many courts since Hardt hold that a remand to a plan administrator may constitute a sufficient degree of success to warrant fees. See, e.g., Gross v. Sun Life Assur. Co. of Canada, 763 F.3d 73, 74-86 (1st Cir. 2014), cert. denied 135 S.Ct. 1477 (2015) (finding sufficient success on the merits after the court remanded to the plan administrator and expressly refrained from expressing any view on the ultimate merits of plaintiff's claim.); McKay v. Reliance Standard Life Ins. Co., 428 F. App'x 537, 539-547 (6th Cir. 2011) (unpublished) (finding plaintiff achieved some degree of success after plaintiff received “another shot” by remanding for further consideration.); Huss v. IBM Med. & Dental Plan, 418 Fed. App'x. 498, 501-513 (7th Cir. 2011) (unpublished) (concluding plaintiff achieved more than “trivial success” ...


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