Petition for Award of Attorneys' Fees
Wood, Chief Judge, and Posner and Williams, Circuit Judges.
POSNER, CIRCUIT JUDGE.
plaintiff's decedent, Jeremy Prather, was employed by a
company that had obtained a Group Insurance Policy from Sun
Life which provided accidental death and dismemberment
coverage for the company's employees, in the amount of
$92, 000 for Prather. The policy limited coverage to
"bodily injuries ... that result directly from an
accident and independently of all other
causes." The clause we've italicized was the
focus of an appeal from the district court, which had granted
summary judgment for Sun Life, which had invoked the clause
to deny the payment of death and dismemberment coverage to
Prather's survivor on the ground that Prather's death
had not been the exclusive result of an accident-it had also
been the result of "complications from surgical
treatment." Prather's widow brought suit "to
recover benefits due to [her]" under the plan. 29 U.S.C.
16, 2013, Prather, age 31, had torn his left Achilles tendon
playing basketball. He was operated on to repair the torn
tendon six days later. The surgery was uneventful and he was
discharged from the hospital the same day. He returned to
work and was reported as doing well in a follow-up visit to
his surgeon on August 2, but four days later he collapsed at
work, went into cardiopulmonary arrest, and died the same day
as a result of a deep vein thrombosis (blood clot) in the
injured leg that had broken loose and traveled through the
bloodstream to a lung, thus becoming a blood clot in the
lung-that is, a pulmonary embolism- which caused cardiac
arrest and sudden death.
Life's position was and is that the pulmonary embolism
and ensuing death were consequences not of-at least not
entirely of-the accident to Prather's Achilles tendon,
but of the surgery, and therefore was not covered by the
insurance policy, which as we said covered only "bodily
injuries ... that result directly from an accident and
independently of all other causes." The
district court granted summary judgment in favor of Sun Life,
Prather's widow appealed, and we reversed, see
Prather v. Sun Life & Health Ins. Co., 843 F.3d
733 (7th Cir. 2016). We reasoned that Sun Life had failed to
make any plausible showing that the surgery on Prather's
ankle, rather than the accident that necessitated the
surgery, had caused his death. We instructed the district
court to enter judgment in favor of the plaintiff, as in
Senkier v. Hartford Life & Accident Ins. Co.,
948 F.2d 1050, 1052 (7th Cir. 1991).
widow has now moved us to award her the attorneys' fees
(that is, to order Sun Life to reimburse her for those fees),
amounting to $37, 170, that she incurred in her successful
suit against the insurance company. The suit had been based
on the Employee Retirement Income Security Act of 1974
(ERISA), the federal law that sets minimum standards for
certain private pension and health plans, in order to provide
financial protection for individuals enrolled in these plans
(as Jeremy Prather had been) and their survivors
(Prather's widow, in this case). See 29 U.S.C. §
1132(a)(1). Specifically, she seeks the fees under section
1132(g)(1), which authorizes a court in its discretion to
"allow a reasonable attorney's fee and costs of
action to either party, " provided the party awarded the
fee and costs had (the Supreme Court said in Hardt v.
Reliance Standard Life Ins. Co., 560 U.S. 242, 245
(2010)), "achieved some success on the merits." The
plaintiff, Prather's widow, achieved not some, but
complete, success on the merits of her suit. That makes it an
easy case for us to exercise discretion favorably to her, and
thus award her her attorneys' fees and costs.
mindful that a number of judicial opinions embrace a
"five factor" test for whether to award
attorneys' fees and costs in cases such as this. They are
"(1) the degree of the offending parties'
culpability; (2) the degree of the ability of the offending
parties to satisfy an award of attorneys' fees; (3)
whether or not an award of attorneys' fees against the
offending parties would deter other persons acting under
similar circumstances; (4) the amount of benefit conferred on
members of the pension plan as a whole; and (5) the relative
merits of the parties' positions. Raybourne v. CIGNA
Life Ins. Co. of New York, 700 F.3d 1076, 1090 (7th Cir.
2012); see also Jackman Financial Corp. v. Humana Ins.
Co., 641 F.3d 860, 866 (7th Cir. 2011).
no information about factor 4, so let's forget it. All
the other factors (four in number) favor the plaintiff in
this case: there is no doubt of Sun Life's culpability
(factor 1), or of its ability to pay without jeopardizing its
existence (it is a multibillion dollar company) (factor 2);
the award of attorneys' fees against it is likely to give
other insurance companies in comparable cases pause (factor
3); and a comparison of the relative merits of the contending
parties clearly favors the plaintiff (factor 5). The score is
4 to 0 in favor of the plaintiff. Prather's widow
doesn't have the big pockets of the insurance company and
would have to pay her lawyer out of whatever money she
recovered from it. Even though she had a meritorious claim,
the insurance company denied it without medical evidence and
then put her through all the hoops of litigation.
Fee-shifting under ERISA is entirely appropriate for
situations like this.
remains to consider Sun Life's challenge to the amount of
the award of attorneys' fees ($37, 170). We are persuaded
by its argument that 3.6 hours of the attorney's work
should be subtracted because they were hours devoted to
simple administrative tasks such as preparing the table of
contents and appendix of the brief, and formatting the brief;
4.4 hours incurred by failing to delegate portions of the
research, drafting, and editing of the brief to a more junior
attorney; and 2 hours for preparation for oral argument,
which was too much time given the lawyer's experience in
arguing in the courts of appeals. The result of these
adjustments is to reduce the number of hours on which the
$37, 170 fee award is based from 59 to 49, yielding (with a
further adjustment, reducing the attorney's billing ...