SEPTEMBER 2017 BAD FAITH CASES: COURT GIVES CLOSE SCRUTINTY TO APPLICATION FOR STATUTORY FEES AND INTEREST: (1) NO INTEREST ON PUNITIVE DAMAGES; (2) NO FEES AND COSTS FOR INADEQUATELY SUBSTANTIATED AND MAINTAINED BILLING RECORDS; (3) RETROACTIVE GUESSING TO RECREATE TIME OF OTHERS OVER A PERIOD OF YEARS, AND FAILURE TO EXPLAIN HOURLY RATE, ADMONISHED AND (5) MATTER REFERRED TO DISCIPLINARY BOARD (Middle District)

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This is a very lengthy opinion, focusing on a successful bad faith plaintiff’s pursuit of statutory interest, attorney’s fees, and costs. The total sought was over 9 times greater than the UIM and bad faith recovery, and the Court scrutinized each time entry invoiced in determining the outcome, which included the Court’s referral of the matter to the Disciplinary Board.

The insured received a $25,000 settlement on his UIM claim, and a $100,000 punitive damages verdict on his bad faith claim. After that verdict, the plaintiff pursued attorney’s fees, statutory interest and costs under the Bad Faith Statute, totaling $1,122,156.43.

Regarding interest, the insured argued that the unpaid balance of $125,000 should bear interest from April 1, 2010 (the date the insured’s claim began) through November 6, 2015 (the date of the jury’s verdict). The insured sought $175,630.70 in total interest.

The Court found this calculation flawed for multiple reasons. (1) The Court had previously found that the appropriate timeframe was June 21, 2011 through June 20, 2014. (2) The insured sought interest on the $100,000 punitive damage award, in addition to the $25,000 UIM payment. Such a request for interest on punitive damages is improper, as “there is no support either in the statute or in the applicable case law for such interest.” (3) The insured’s counsel failed to deduct the principal balance in calculating interest. (4) Using the prime rate of 3.25%, plus 3% statutory super-interest on the underlying UIM claim, the Court awarded $4,986.58 for interest.

In addressing attorney’s fees and litigation expenses, the Court reiterated that the purpose of an award of attorneys’ fees under § 8371 is “to make the successful plaintiff whole by allowing the plaintiff to recoup funds unnecessarily expended to force an insurance company to pay that which it should have paid.”

In reviewing the request for fees and costs, the Court found that billing records were not properly maintained. Rather, one attorney reconstructed all time entries for every attorney, paralegal, and IT staff member billing time on the matter over a six-year period. This attorney did so by guessing as to how long each task took. The Court repeatedly referenced the word “guess” in the Opinion. (E.g., the Court stated: “In addition to the unconscionable number of vague entries which have been billed for (or more accurately guessed about) by the plaintiff’s counsel, there also appear to be a number of duplicative entries in the bad faith time logs for which no explanation is provided.”)

The Court scrutinized every entry billed, finding “that a vast number of the entries for paralegal services on the UIM claim should be disallowed as vague, excessive, duplicative or unnecessary.” Thus, the Court disallowed 84 hours out of a total of 106.5 hours submitted for paralegal services on the UIM claim, a 79% reduction.

The Court found the same problems with respect to the paralegal hours billed for the bad faith claim, and disallowed 177.75 hours out of a total of 198 hours submitted, for a 90% reduction.

The Court found that entries submitted for the attorneys’ services also suffered from problems of vagueness and being duplicative. The Court stated that the “[insured’s] counsel . . . failed to meet even the most basic burden of providing the rate(s) charged for the[] entries, let alone establishing the reasonableness of such rate(s).” For the UIM claim, the Court disallowed all but 4 attorney hours from the 99 submitted, a 96% reduction. With respect to the bad faith claim, counsel submitted 1,984 attorney hours. The Court disallowed 1,662.5 of those hours, an 84% reduction. The Court additionally reduced the hours billed by the IT staff by 71%.

Lastly, the Court admonished counsel for failing to provide any justification for an hourly rate of $420. The Court forwarded a copy of its opinion to the Disciplinary Board of the Supreme Court of Pennsylvania.

The District Court’s decision to award no fees at all because of the excessively outrageous fee request was affirmed by the Third Circuit, on September 12, 2018.

Date of Decision: August 29, 2017

Clemens v. New York Cent. Mut. Fire Ins. Co., No. 3:13-2447, 2017 U.S. Dist. LEXIS 138557 (M.D. Pa. Aug. 29, 2017) (Mannion, J.)

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