Opinion
CASE NO. 18-80558-CV-MIDDLEBROOKS
2022-04-06
The LEBBIN-SPECTOR FAMILY TRUST, BY AND THROUGH its trustees Roger M. LEBBIN and Carole Sue Lebbin, Plaintiffs, v. TRANSAMERICA LIFE INSURANCE COMPANY, Defendant.
Emily J. Chase, Gunster, West Palm Beach, FL, James S. Bainbridge, Pro Hac Vice, The Bainbridge Law Firm, Plymouth Meeting, PA, Megan Kelberman Moon, Timothy Stephen Danninger, Gunster Yoakley & Stewart P.A., Jacksonville, FL, for Plaintiffs The Lebbin-Spector Family Trust by and through its Trustees Roger M. Lebbin and Carole Sue Lebbin. Julianna Thomas McCabe, Richard J. Ovelmen, Todd Matthew Fuller, Markham Richard Leventhal, Carlton Fields Jorden Burt, P.A., Miami, FL, for Defendant.
Emily J. Chase, Gunster, West Palm Beach, FL, James S. Bainbridge, Pro Hac Vice, The Bainbridge Law Firm, Plymouth Meeting, PA, Megan Kelberman Moon, Timothy Stephen Danninger, Gunster Yoakley & Stewart P.A., Jacksonville, FL, for Plaintiffs The Lebbin-Spector Family Trust by and through its Trustees Roger M. Lebbin and Carole Sue Lebbin. Julianna Thomas McCabe, Richard J. Ovelmen, Todd Matthew Fuller, Markham Richard Leventhal, Carlton Fields Jorden Burt, P.A., Miami, FL, for Defendant. ORDER GRANTING DEFENDANT TRANSAMERICA LIFE INSURANCE COMPANY'S UNOPPOSED MOTION FOR ATTORNEYS' FEES Donald M. Middlebrooks, United States District Judge
THIS CAUSE comes before the Court on Defendant Transamerica Life Insurance Company's Motion for Attorneys' Fees and Costs, filed on December 7, 2021. (DE 279). The Motion is unopposed. For the reasons set forth below, Defendant's Motion is granted.
Plaintiffs initiated this lawsuit on July 6, 2017, asserting fraud and contract-based claims against Defendant after Defendant informed Plaintiff Gary Lebbin that it intended to terminate his life insurance policy when he reached the age of 100. (DE 1). Plaintiff Gary Lebbin ultimately settled his claims against Defendant, and I granted summary judgment in favor of the Trust for breach of contract on July 19, 2019. (DE 197). Defendant appealed, and on August 2, 2021, the Eleventh Circuit reversed and remanded with instructions to enter summary judgment in favor of Defendant on the breach of contract claim, which I did on October 22, 2021. (DE 274; DE 275).
A. Entitlement to Attorneys' Fees
Defendant now argues that it is entitled to its reasonable attorneys' fees incurred after it served its Offer of Judgment on the Trust pursuant to Florida Statute § 768.79. Defendant represents that "[o]n November 16, 2018, after taking substantial and material discovery, [Defendant] served its Offer of Judgment on the Trust pursuant to § 768.79, offering to settle its dispute with the Trust for $10,000." (DE 279 at 3). The Trust did not accept the Offer of Judgment.
Florida's offer of judgment statute, § 768.79, provides:
In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by her or him or on the defendant's behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or if the judgment obtained by the plaintiff is at least 25 percent less than such offer[.]Fla. Stat. § 768.79(1). The statute requires that the offer "(a) [b]e in writing and state that it is being made pursuant to this section; (b) [n]ame the party making it and the party to whom it is being made; (c) [s]tate with particularity the amount offered to settle a claim for punitive damages, if any; and [d] [s]tate its total amount." Fla. Stat. § 768.79(2). The offer must also comply with the requirements of Florida rule of Civil Procedure 1.442. See id.; see also McMahan v. Toto, 311 F.3d 1077, 1082 (11th Cir. 2002).
"The underlying purpose of the offer of judgment statute includes the early termination of litigation by encouraging realistic assessments of the claims made." U.S. Sec. Ins. Co. v. Cahuasqui, 760 So.2d 1101, 1104 (Fla. 3d DCA 2000). "Section 768.79 and Rule 1.442 mandate an award of attorney's fees to a defendant when there is a rejected offer of judgment and a finding of no liability." DuPoint Builders, Inc. v. Baker, 987 So.2d 146, 147 (Fla. 2d DCA 2008). The imposition of fees and costs is not discretionary. See Fla. Stat. § 768.79(1) ("[T]he defendant shall be entitled to recover reasonable costs and attorney's fees incurred" from the date of the rejected offer "if the judgment is one of no liability.") (emphasis added); see also Motter Roofing, Inc. v. Leibowitz, 833 So.2d 788, 789 (Fla. 3d DCA 2002) (holding trial court erred in denying fees because under § 768.79 "attorney's fees are not discretionary").
Here, Defendant filed an Offer of Judgment in writing. (See 279-1, Ex. 4). The Offer of Judgment stated that it was being made pursuant to Florida Statute § 768.79, named Defendant as the party making the offer and the Plaintiff Trust as the party to whom it was being made, and stated the total amount. (Id.). It therefore qualified as an Offer of Judgment under § 768.79. Plaintiff did not accept the Offer. As such, Defendant is entitled to its reasonable attorney's fees incurred after the date of filing the Offer.
B. Reasonableness of Attorneys' Fees
Defendant seeks $3,040,459.20 in attorneys' fees "for work performed over 6,624.9 hours in this case by twelve timekeepers." (DE 279 at 6). Plaintiff has not responded in opposition to this amount.
"The starting point for determining the amount of a 'reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.' " Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). That "lodestar" may be adjusted after considering other factors. See id. (citations omitted). Under this method, the Court must determine whether the fee applicant has satisfied the burden of establishing that the requested hourly rate is reasonable. "A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation." Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988) (citations omitted). "Evidence of rates may be adduced through direct evidence of charges by lawyers under similar circumstances or by opinion evidence." Id.
The "net hourly rates" for the Carlton Fields attorneys retained by Defendant after discounts applied by Carlton Fields are as follows:
| Role | Name | Rate per Hour | Number of Hours | Total Fees |
|---|---|---|---|---|
| Shareholder | Markham Leventhal | $630-$697.50 | 643.90 | $419,922.00 |
| Richard Ovelmen | $648 | 126.50 | $81,972.00 | |
| Julianna McCabe | $495-$576 | 1,343.20 | $691,146.90 | |
| Todd Fuller | $445.50-$517.50 | 1,499.70 | $711,952.65 | |
| Andres Chagui | $445.50-$517.50 | 1,025.50 | $470,206.35 | |
| Dawn Williams | $450-$463.50 | 250.70 | $115,224.75 | |
| Ben Seessel | $445.50-$459 | 278.50 | $126,709.65 | |
| Associate | Brooke Patterson | $292.50-$378 | 668.80 | $195,624.00 |
| Adriana Perez | $292.50 | 268.10 | $78,419.25 | |
| Elise Haverman | $328.50-$382.50 | 122.60 | $40,274.10 | |
| Senior Paralegal | Debra Katz | $261-$292.50 | 338.50 | $92,119.95 |
| Litigation Case Manager | Sarah Ahmad | $280-$288 | 58.90 | $16,887.60 |
Turning to the number of hours, in determining the number of hours "reasonably expended," the Supreme Court requires fee applicants to exercise "billing judgment." Hensley, 461 U.S. at 434, 103 S.Ct. 1933 (citations omitted). Therefore, attorneys "should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary." Id. Upon review of the detailed billing records submitted by Defendant, I conclude that the Carlton Fields attorneys exercised such judgment. Therefore, I conclude that the amount of attorneys' fees requested is reasonable.
C. Costs
Defendant also seeks to recover non-taxable costs in the amount of $257,167.38. As the prevailing party under § 768.79, Defendant is entitled to these costs. Fla. Stat. § 768.79(6)(a). The total submitted by Defendant consists of $108,093.91 incurred for experts; $88,500 for a trial consultant; and $31,956.26 for graphics and evidentiary support. The remainder consists of $6,250 in deposition witness fees; $1,250 in mediation fees; $2,400 in e-discovery management costs; and $18,706.52 in travel expenses. However, upon adding the sums submitted by Defendant, the total amount of costs equals $257,156.69, not $257,167.38. Therefore, Defendant is awarded costs in the amount of $257,156.69.
Based upon the foregoing, it is hereby ORDERED AND ADJUDGED that:
(1) Defendant's Unopposed Motion for Attorneys' Fees (DE 279) is GRANTED.
(2) Defendant is AWARDED a total of $3,040,459.20 in attorneys' fees and $257,156.69 in costs.
(3) This award is entered in favor of Defendant and against Plaintiff the Lebbin-Spector Family Trust.