United States District Court, W.D. Washington, Tacoma
ORDER ON PLAINTIFF'S MOTION FOR ATTORNEYS'
J. BRYAN, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Plaintiff's Motion
for an Award of Attorneys' Fees under 29 U.S.C. §
1132 (g)(1). Dkt. 40. The Court has considered the pleadings
filed regarding the motion and the remaining file.
Employee Retirement Income Security Act, 29 U.S.C. §
1001, et. seq., (“ERISA”) case, the
Plaintiff sought a declaration that he was entitled to
long-term disability benefits under an employment benefit
plan. Dkt. 1. The Defendant paid the benefits for a period of
time, but in April of 2015, contended that Plaintiff no
longer met the policy's definition of disability.
Id. On August 9, 2017, Plaintiff's motion for
summary judgement was granted and judgment was entered
against the Defendant on September 11, 2017. Dkts. 36 and 39.
Plaintiff now moves for $83, 184.00 in attorneys' fees.
Dkt. 40. For the reasons provided below, the motion (Dkt. 40)
should be granted.
was a long-haul truck driver. Dkt. 1. His employer offered a
long-term disability plan as part of his benefits package.
Dkts. 1 and 21-1, at 1-123. In December 2008, Plaintiff
suffered an industrial accident, and on October 24, 2009
began receiving long-term disability benefits under the plan.
Dkts. 1 and 21-1, at 160. He began working as a real estate
agent in 2010. Dkt. 21-3, at 51.
April of 2015, the Defendant terminated his benefits,
claiming that as a real estate agent, he was able to earn a
median income of $65, 290.00, which was in excess of the $60,
000.00 which he could earn and still receive benefits under
the plan. Dkts. 21-1, at 198-201. Plaintiff inquired of the
decision, and after receiving a market survey, which showed
that that median wage was $50, 000.00, Defendant asserted
that Plaintiff was a real estate broker, not a real estate
agent. Dkt. 21-1. Defendant asserted that the national median
wage for brokers was over $80, 000.00. Id.
filed an appeal on October 26, 2015, explaining that he was a
real estate agent not a broker, and that the median income
for either an agent or broker in this region was still below
$60, 000.00. Dkts. 21-3, at 41-200; and 21-4. The appeal was
denied; Defendant asserted that Plaintiff was a real estate
broker, and that, in any event, Plaintiff was capable of
performing duties of three other jobs which paid a median
wage of more than $60, 000.00. Dkt. 21-2.
filed a second appeal, asserting he was an agent, not a
broker, and that he could not perform the three other jobs.
Dkt. 21-1, at 316-323. He submitted a Labor Market Study in
which a vocational expert supported his positions.
Id. Defendant denied the second appeal but did not
discuss Plaintiff's arguments or the evidence he
submitted. Id., at 225-228.
filed this case on April 7, 2016. Dkt. 1. The parties filed
cross motions for summary judgment. Dkts. 23 and 24. A bench
trial was held on August 8, 2017 and the Court issued an oral
ruling on August 9, 2017, finding in favor of Plaintiff.
Dkts. 31 and 33. The Defendant was ordered to pay Plaintiff
long-term disability benefits from April 30, 2015 to the date
of the judgment (September 11, 2017), plus interest, and
reinstate Plaintiff's benefits. Dkt. 39. On October 10,
2017, Defendant filed a notice of appeal. Dkt. 43.
now moves for an award of attorneys' fees in the amount
of $83, 184.00. Dkt. 40. Defendant opposes the motion,
arguing that either the motion should be denied or the amount
awarded should be reduced. Dkt. 45.
AWARD OF FEES
ERISA's civil enforcement provision, 29 U.S.C. §
1132 (g)(1), courts have discretion to award reasonable
attorneys' fees and costs, where a party has achieved
“some degree of success on the merits.” Hardt
v. Reliance Standard Life Ins. Co., 560 U.S. 242, 256
prevailed on summary judgment and was awarded back benefits,
interest and a reinstatement of future benefits so long as he
meets the requirements of the plan. Accordingly, he has
achieved “some degree of success on the merits.”
Hardt, at 256. After making this determination,
courts in the Ninth Circuit then examine the factors set
forth in Hummell v. S.E. Rykoff Co., 634 F.2d 446
(9th Cir. 1980) in deciding whether to award fees under 29
U.S.C. § 1132 (g)(1). Simonia v. Glendale
Nissan/Infiniti Disability Plan, 608 F.3d 1118, 1119
(9th Cir. 2010). Those factors are:
(1) the degree of the opposing parties' culpability or
bad faith; (2) the ability of the opposing parties to satisfy
an award of fees; (3) whether an award of fees against the
opposing parties would deter others from acting under similar
circumstances; (4) whether the parties requesting fees sought
to benefit all participants and beneficiaries of an ERISA
plan or to resolve a significant legal question regarding
ERISA; and (5) the relative merits of the parties'
Hummell, at 453. When applying the Hummell
factors, courts “must keep at the forefront ERISA's
remedial purposes that should be liberally construed in favor
of protecting participants in employee benefit plans.”
McElwaine v. U.S. W., Inc., 176 F.3d 1167, 1172 (9th
Cir. 1999)(internal quotations and citation
omitted). Further, the courts in the Ninth Circuit
“also apply a special circumstances rule in which a
successful ERISA participant should ordinarily recover an
attorney's fee unless special circumstances would render
such an award unjust.” Id. Further, “no
single Hummell factor is necessarily
decisive.” Simonia, at 1122. Each of these
factors will be examined below.
The Degree of the Opposing Parties' Culpability or Bad
factor counsels somewhat in favor of an award of fees. There
is some evidence that the Defendant acted in its own interest
rather than as a fiduciary for the Plaintiff. It failed to
take into account or even discuss evidence that was contrary
to its decision to deny Plaintiff's benefits in its
written decisions. The Defendant did not acknowledge it had
committed an error about the nature of Plaintiff's work.
Instead, it forced Plaintiff to file a lawsuit to have his
benefits reinstated. Although Defendant asserts that
Plaintiff rejected vocational assistance and attempted to
minimize his income, it does not show that Plaintiff acted in
bad faith such that an award of fees is improper.
Ability of Defendant ...