Opinion
92 CV 4484 (CBA) (RML), 95 CV 0951 (CBA) (RML).
March 24, 2006
REPORT AND RECOMMENDATION
By order dated May 27, 2005, the Honorable Carol Bagley Amon, United States District Judge, referred these cases to me for a report and recommendation regarding plaintiffs' proposed judgments with respect to defendants Robyn and Barry Gold, Gary Beckerman, G.B. Atlantic Adjusters, Inc., Seymour Baruch, Alan Rosenkranz, Robert Simon and Joseph Rigney. Plaintiffs have since reached a settlement with Seymour Baruch. (See Letter of William B. Pollard III, Esq., dated Jan. 19, 2006; Order dated Feb. 28, 2006.) For the reasons stated below, I respectfully recommend that judgment be entered against each of the remaining defendants as described infra.
BACKGROUND AND FACTS
Plaintiffs Chubb Son Inc., Federal Insurance Company, Vigilant Insurance Company, Sea Insurance Company of America and Great Northern Insurance Company ("plaintiffs" or "Chubb") brought this action against numerous defendants, alleging that they participated in the submission of fraudulent property insurance claims to Chubb in violation of the Racketeer and Influenced Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961, et seq. (2000) and state law. (See Second Amended Complaint, dated March 24, 1995 ("SAC").) Plaintiffs allege that the defendants defrauded Chubb by making material, false representations and that Chubb relied on those misrepresentations, thereby suffering damage. (Id.)On September 28, 2001, Judge Amon granted plaintiffs' motions for partial summary judgment, either in whole or in part, as to defendants Gary Beckerman, G.B. Atlantic Adjusters, Inc., Robyn and Barry Gold, Alan Rosenkranz, Robert Simon, and Joseph Rigney (the "defendants"). The court's Memorandum and Order of that date, familiarity with which is assumed, directed plaintiffs to submit proposed judgments against those defendants "reflecting the reduced amount for which these defendants can be held responsible, taking into account any settlements entered by their co-conspirators or any amounts they or their co-conspirators paid pursuant to a restitution order." (Memorandum and Order, dated Sept. 28, 2001, at 115.) On November 8, 2001, plaintiffs submitted proposed judgments, and defendants Alan Rosenkranz and Robert Simon subsequently filed objections. On January 3, 2003, plaintiffs resubmitted their proposed judgments, making certain modifications to address some of the objections raised. Defendant Alan Rosenkranz raised objections to the revised proposed judgment. By order dated May 27, 2005, Judge Amon directed plaintiffs to submit an updated proposed judgment for entry against the above-named defendants. The order further directed defendants to re-file their objections and referred the matter to me for Report and Recommendation. After receiving written objections from Rosenkranz and Simon, I conducted a conference with the parties on September 15, 2005, after which Chubb, Rosenkranz and Simon filed supplemental submissions regarding the damages calculations. (See Letter of Robert M. Simon, dated Sept. 21, 2005; Letter of Howard S. Veisz, Esq., dated Sept. 29, 2005; Letter of Howard S. Veisz, Esq., dated Oct. 14, 2005 ("Veisz Ltr."); Letter of Lawrence K. Katz, Esq., dated Oct. 25, 2005; Letter of Howard S. Veisz, Esq., dated Nov. 2, 2005; Letter of Robert M. Simon, dated Nov. 11, 2005.)
Chubb's supplemental submission included credits for settlement payments that had not been received as of the date of its earlier submission. (See Letter of Howard S. Veisz, Esq., dated Oct. 14, 2005, at 9.)
Defendants have raised four issues with respect to plaintiffs' proposed judgments. First, defendants objected to the manner in which Chubb applied prior settlement payments and judgment recoveries in calculating the judgment amounts. Chubb recalculated the judgment amounts using the methodology advocated by defendant Robert Simon, and plaintiffs maintain that this issue is now moot. (Letter of William B. Pollard, III, dated June 17, 2005 ("Pollard 6/17/05 Ltr."), at 1-2.)
Second, defendants sought to have Chubb disclose the amounts each settling defendant paid to Chubb and the dates of those payments. Counsel for defendant Alan Rosenkranz argued that he needed such information in order to determine whether Chubb computed the prejudgment interest properly. (Letter of Lawrence K. Katz, Esq., dated Nov. 14, 2001 ("Katz 11/14/01 Ltr."), at 1.See also Letter of Lawrence K. Katz, Esq., dated Jan. 7, 2003 ("Katz 1/7/03 Ltr."), at 1.) Chubb initially disclosed the aggregate amounts of such settlements, but argued that the settlement agreements contained confidentiality provisions prohibiting disclosure of the information sought. (Pollard 6/17/05 Ltr. at 2.) At the conference on September 15, 2005, I ordered Chubb to produce copies of settlement agreements with other defendants, redacted to include only: payment amounts and schedules; names of payors and payees; the claims to which the payments are to be applied; and any general releases and stipulations of discontinuance provided in consideration of the payments. (See Order dated Sept. 15, 2005.) The production was subject to a protective order that limited access to Rosenkranz, his counsel, and Simon, acting pro se. (Id.) Chubb complied with my order by submitting, under seal, a letter with exhibits and revised proposed judgments. (See Veisz Ltr.) This issue therefore appears resolved.
Third, defendant Rosenkranz argues that he is entitled to apportionment of liability pursuant to N.Y.G.O.L. § 15-108. (See Katz 11/14/01 Ltr.; Katz 1/7/03 Ltr.) Plaintiffs counter that, because Rosenkranz's liability has been established, he has waived any right to offset based on an apportionment of liability, but rather is limited to an offset based on the settlement amount paid or the amount stipulated as condition for the release. Plaintiffs explain that, in preparing the proposed judgments in accordance with Judge Amon's Memorandum and Order, "credit was given for money previously collected by Chubb through settlement or judgment enforcement." (Pollard 6/17/05 Ltr. at 2.)
Finally, defendant Simon argues that he should not be held liable for the entire amount of damages Chubb sustained as a result of the United Utensil loss on December 27, 1989. Chubb contends that this is an untimely effort to reargue the summary judgment motion and that, in any event, as a co-conspirator, Simon is responsible for all of Chubb's damages regarding that claim. (Id.)
Each of these issues will be addressed in turn.
DISCUSSION
Chubb has submitted tables reflecting the amounts of the settlement and restitution payments attributable to each claim, as well as monies received through judgment enforcement, and their impact on the overall judgment calculation with respect to each defendant. (See Veisz Ltr., Ex. B.) It has also submitted copies of the underlying settlement and restitution documents, which this court has reviewed in camera, for the purpose of verifying the credits allocated to each defendant. (See Veisz Ltr., Exs. A, C, D, E, F, G, H, I.) As reflected in the tables, each defendant was credited for settlement and restitution payments on a pro rata basis, based on the payor's total liability. When settlement or restitution payments were received, the principal amount owed was reduced for purposes of calculating prejudgment interest.1) Robyn and Barry Gold (92 CV 4484)
According to Judge Amon's Memorandum and Order of September 28, 2001, the evidence in the record establishes that homeowners Robyn and Barry Gold submitted four fraudulent insurance claims, for $70,371.36, $40,668.54, $12,947.46, and $8,558 respectively. (Memorandum and Order, dated Sept. 28, 2001, at ii, n. 1.) These claims total $132,545.36. According to Chubb's Revised Proposed Partial Judgment, Chubb has received $42,954.27 in settlement and restitution payments, and judgment enforcement, with respect to these claims. (See Veisz Ltr., Exs. B, K.) In addition, Chubb has calculated prejudgment interest on each claim separately, at the rate of nine percent per annum. See N.Y.C.P.L.R. § 5004. Chubb represents that the prejudgment interest on the February 1, 1987 Gold claim, from March 23, 1987 until and including September 30, 2005, totals $106,931.10; that the interest on the September 11, 1987 Gold claim, from September 25, 1987 until and including September 30, 2005, totals $59,931.72; that the interest on the July 8, 1990 Gold claim, from September 18, 1990 until and including September 30, 2005, totals $8,311.65; and that the interest on the October 21, 1988 Gold claim, from December 6, 1988 until and including September 30, 2005, totals $14,653.08. Including the prejudgment interest, Chubb proposes a judgment against Robyn and Barry Gold in the aggregate amount of $279,418.64. This court has received no objection to these calculations from Robyn and Barry Gold. Having reviewed the documents thoroughly, I am satisfied that Chubb's allocations and computations are accurate. I therefore respectfully recommend that judgment be entered against defendants Robyn and Barry Gold in the amount of $279,418.64, plus prejudgment interest of nine percent per annum from October 1, 2005 to the date of entry of judgment. As explained below, the Golds are jointly and severally liable for that amount with defendants Gary Beckerman and G.B. Atlantic Adjusters, Inc.
All prejudgment interest is calculated from the date the claim was paid. See N.Y.C.P.L.R. § 5001(b); see also St. Paul Fire Marine Ins. Co. v. Fox Insulation Co., No. 96 CV 0502E(F), 1999 WL 782333, at *1 (W.D.N.Y. Sept. 30, 1999) ("[T]he prejudgment interest accrues from the date the insurance company makes payment.") (citing American Home Assurance Co. v. Morris Industrial Builders, Inc., 597 N.Y.S.2d 27, 28 (1st Dep't 1993)).
Prejudgment interest on the February 1, 1987 claim accrues at the rate of 13.03 per day; interest on the September 11, 1987 claim accrues at the rate of $7.53 per day; interest on the October 21, 1988 claim accrues at the rate of $0.92 per day; and interest on the July 8, 1990 claim accrues at the rate of $0.61 per day. Thus, per diem interest on these claims equals $22.09. (See Veisz Ltr., Ex. J.)
2) Gary Beckerman and G.B. Atlantic Adjusters, Inc. (92 CV 4484)
According to Judge Amon's Memorandum and Order of September 28, 2001, the evidence in the record establishes that defendant Gary Beckerman and his public adjusting firm, G.B. Atlantic Adjusters, Inc., were involved in five fraudulent claims for which plaintiffs seek to recover damages: the four Gold claims totaling $132,545.36, and one homeowner claim for Elliott and Gale Levy in the amount of $70,563.29. (Memorandum and Order, dated Sept. 28, 2001, at ii, n. 2.)
According to Chubb's Revised Proposed Partial Judgment, Chubb has received $60,529.71 with respect to these claims ($42,954.27 with respect to the four Gold claims and $17,575.45 on the Levy claim). (See Veisz Ltr., Exs. B, K.) In addition, Chubb has calculated prejudgment interest on each claim separately, at the rate of nine percent per annum. It represents that the interest on the Levy claim, from May 7, 1987 until and including September 30, 2005, totals $106,399.05, and that the interest on the four Gold claims totals $189,827.55. (See id., Exs. B, K.) In addition, Beckerman is individually liable to Chubb for treble damages, pursuant to 18 U.S.C. §§ 1962 and 1964. (See Memorandum and Order, dated Sept. 28, 2001, at 114 n. 58) (holding that Beckerman is liable for treble damages under RICO for these claims)).
Including the prejudgment interest, Chubb proposes a judgment against Gary Beckerman in the aggregate amount of $844,941.83 ($203,081.65 multiplied by three, plus interest of $296,226.60, minus $60,529.71 previously received), and against G.B. Atlantic Adjusters, Inc. in the aggregate amount of $438,778.53 ($203,081.65, plus interest of $296,226.60, minus $60,529.71 previously received). This court has received no objection to these calculations from any party.
Having reviewed the documents thoroughly, I am satisfied that Chubb's allocations and computations are accurate. I therefore respectfully recommend that judgment be entered against Gary Beckerman in the amount of $844,941.83, plus prejudgment interest of nine percent per annum from October 1, 2005 to the date of entry of judgment, and against G.B. Atlantic Adjusters, Inc. in the amount of $438,778.53, plus prejudgment interest of nine percent per annum from October 1, 2005 to the date of entry of judgment. Of these amounts, Beckerman and G.B. Atlantic Adjusters are jointly and severally liable for $438,778.53, and both of these defendants are jointly and severally liable with Barry and Robyn Gold for $279,418.64, and with Gale and Elliott Levy for $158,158.48.
Prejudgment interest on the February 1, 1987 Gold claim accrues at the rate of $13.03 per day; interest on the September 11, 1987 Gold claim accrues at the rate of $7.53 per day; interest on the October 21, 1988 Gold claim accrues at the rate of $0.92 per day; interest on the July 8, 1990 Gold claim accrues at the rate of $0.61 per day; and interest on the Levy claim accrues at the rate of $13.06 per day. Thus, per diem interest on these claims totals $35.15. (See Veisz Ltr., Ex. J.)
3) Alan Rosenkranz (95 CV 951)
According to Judge Amon's Memorandum and Order of September 28, 2001, the evidence in the record establishes that defendant Alan Rosenkranz was one of the principals of United Utensils Co., Inc., which submitted three fraudulent claims to Chubb for damage at its manufacturing plant in Port Washington, New York and received a total of $735,919.91. (Memorandum and Order, dated Sept. 28, 2001, at 46, 52.) However, Judge Amon declined to grant summary judgment with respect to one of those claims, for $256,671.91, because Chubb had not presented sufficient evidence to demonstrate that the claim was brought within the applicable statute of limitations. (Id. at 55.) Thus, Judge Amon granted summary judgment against Rosenkranz with respect to the two remaining claims, totaling $479,248, and held that Rosenkranz is jointly and severally liable with any co-conspirators on those claims and that his liability may be subject to reduction to the extent that any co-conspirator's settlement of this action encompassed the United Utensils loss. (Id. at 58-59.)
Rosenkranz pleaded guilty to mail fraud in connection with the January 4, 1989 United Utensils claim. (Veisz Ltr. at 11.)
As noted above, Rosenkranz argues that he is entitled to apportionment of liability under N.Y.G.O.L. § 15-108, which states in pertinent part:
(a) Effect of release of or covenant not to sue tortfeasors. When a release or a covenant not to sue or not to enforce a judgment is given to one of two or more persons liable or claimed to be liable in tort for the same injury, . . . it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms expressly so provide, but it reduces the claim of the releasor against the other tortfeasors to the extent of any amount stipulated by the release or covenant, or in the amount of the consideration paid for it, or in the amount of the released tortfeasor's equitable share of the damages under article fourteen of the civil practice law and rules, whichever is the greatest. (emphasis added.)
In her Memorandum and Order, Judge Amon explained that "to the extent some defendants have entered into settlement agreements with plaintiffs, the remaining defendants are entitled to a set-off based on those settlement agreements" under the "one satisfaction rule." (Memorandum and Order, dated Sept. 28, 2001, at 24.) Judge Amon further held that the "proportionate responsibility rule" adopted in McDermott, Inc v. AmClyde, 511 U.S. 202 (1994), pursuant to which a non-settling defendant's liability is reduced in accordance with the settling party's allocation of responsibility "does not seem applicable" here, where the court has granted summary judgment against certain defendants and the issue of proportionate responsibility has not been decided by a jury. (Memorandum and Order, dated Sept. 28, 2001, at 25.) Judge Amon also rejected Rosenkranz's attempt to invoke the doctrine of comparative fault, holding that contributory negligence is not a valid defense to fraud. (Id. at 56.)
Rosenkranz apparently did not cite N.Y.G.O.L. § 15-108 during briefing and argument on the summary judgment motions. Nor did he raise it as an affirmative defense in his answer, as required.See Whalen v. Kawasaki Motors Corp., 703 N.E.2d 246, 249 (N.Y. 1998) ("as an affirmative defense, General Obligations Law § 15-108(a) must be pled by a tortfeasor seeking its protection."). Regardless, for the same reasons Judge Amon rejected application of the proportionate responsibility rule, § 15-108 is inapplicable here.
As the Second Circuit has explained, § 15-108 "has two purposes: first, to encourage settlement . . . and, second, to ensure that nonsettling tortfeasors are not required to bear more than their equitable share of liability." Apple v. Jewish Hosp. and Med. Center, 829 F.2d 326, 331 (2d Cir. 1987) (citing Rock v. Reed-Prentice Division of Package Machinery Co., 346 N.E.2d 520 (1976) and Mielcarek v. Knights, 375 N.Y.S.2d 922 (4th Dep't 1975)). In Banks ex rel. Banks v. Yokemick, 177 F.Supp. 2d 239, 260 (S.D.N.Y. 2001), the court further explained that:
[a]t its most basic level, the driving force embodied in G.O.L. § 15-108 is that of ensuring the compensation of victims while preventing their unjust enrichment. Viewed as the reverse side of the same coin, to encourage settlements, the statute seeks a fair allocation of the total financial obligation for damages among all the tortfeasors found responsible for the particular party's injury, whether by settlement or trial. . . . In this manner, the statute, in the interest of minimizing the potential for over-compensation, fosters equitable, financial and judicial economy policies that appear to convey more solicitude towards fairness to the nonsettling tortfeasor than to the injured party.
Here, there is no risk of Chubb being overcompensated or unjustly enriched. Unlike in a personal injury case, for example, Chubb's injury was financial and is therefore subject to precise mathematical calculation. Moreover, Judge Amon has already made clear that all of the defendants who were involved in the submission of the fraudulent United Utensils claims are jointly and severally liable and that the non-settling defendants are entitled to set-offs based on the one satisfaction rule. Rosenkranz's invocation of § 15-108 is essentially an effort to reargue that point. Judge Amon's ruling is law of the case and will not be revisited here.
According to Chubb's Revised Proposed Partial Judgment, Chubb has received $319,646.17 with respect to these claims. (See Veisz Ltr., Exs. B, K.) In addition, Chubb represents that the prejudgment interest on the December 27, 1989 United Utensils claim, from April 23, 1990 until and including September 30, 2005, totals $159,782.78, and that the interest on the January 4, 1989 United Utensils claim, from April 12, 1989 until and including September 30, 2005, totals $349,282.23. (Id.) Including the prejudgment interest, Chubb proposes a judgment against Rosenkranz in the aggregate amount of $668,666.85.
Rosenkranz made five restitution payments, all of which were credited to the January 4, 1989 United Utensils claim, for which he pleaded guilty. (See Viesz. Ltr. at 11 and Ex. B.)
Having reviewed the documents thoroughly, I am satisfied that Chubb's allocations and computations are accurate. I therefore respectfully recommend that judgment be entered against Rosenkranz in the amount of $668,666.85, plus prejudgment interest of nine percent per annum from October 1, 2005 to the date of entry of judgment. Of that amount, Rosenkranz is jointly and severally liable with Robert Simon for $227,172.89 ($150,453.00 on the December 27, 1989 United Utensils claim, plus prejudgment interest of $159,782.78, minus $83,062.90 in settlement payments), and with Joseph Rigney for $441,493.96 ($328,795.00 on the January 4, 1989 United Utensils claim, plus $349,282.23 in prejudgment interest, minus $236,583.27 in settlement and restitution payments).
Rosenkranz points out that Chubb credited some settlement payments to claims that, if litigated, would have been subject to a statute of limitations defense. (See Letter of Lawrence K. Katz, Esq., dated Oct. 25, 2005.) However, the settling defendants were potentially liable for those claims; by settling, they avoided having to litigate the statute of limitations issue. (See Letter of Howard S. Veisz, Esq., dated Nov. 2, 2005, at 3.) Thus, Chubb properly credited settlement payments against the claims listed in the applicable settlement agreements.
On the January 4, 1989 United Utensils claim, prejudgment interest accrues at the rate of $22.74 per day, and on the December 27, 1989 United Utensils claim, prejudgment interest accrues at the rate of $16.62 per day. Thus, total per diem interest equals $39.35. (See Veisz Ltr., Ex. J.)
4) Robert Simon (95 CV 951)
Judge Amon granted summary judgment against Robert Simon, an accountant, on three claims: (1) the February 17, 1989 L.J. Simone claim for $483,125.27; (2) the December 27, 1989 United Utensils claim for $150,453.00; and (3) the March 5, 1991 Techknits claim for $1,239,100.00. (Memorandum and Order, dated Sept. 28, 2001, at 59-60.)
As explained above, Simon objects to being held jointly and severally liable for the entire December 27, 1989 United Utensils claim, and argues that his liability should not extend beyond the $25,811.00 business interruption portion of that claim. (See Letter of Robert Simon, dated Sept. 21, 2005.) However, as Judge Amon explained in her Memorandum and Order of September 28, 2001, "[e]ach defendant who participated in the submission of a fraudulent claim is jointly and severally liable for the [entire] amount of that claim with the other defendants who participated in submitting the claim." (Memorandum and Order, dated Sept. 28, 2001, at 24 (citing Merrill Lynch, Pierce, Fenner Smith, Inc. v. Arcturus Builders, Inc., 552 N.Y.S.2d 287, 288 (1st Dep't 1990).) Again, that ruling is law of the case and will not be revisited here.
Indeed, Simon raised this argument in his opposition to Chubb's motion for summary judgment. (See Robert M. Simon Opposition to Motion for Summary Judgment, dated Aug. 18, 1999, at 3) (arguing that because his company was hired only with regard to the business interruption claim, "there can be no basis for the plaintiff's allegation with regard to the $125,462 paid for property damage."). Judge Amon rejected this argument, holding that because Simon admitted to participating in the scheme to submit fraudulent insurance claims to Chubb, and concealed his knowledge that the overall claim was fraudulent, he is liable as a matter of law for the entire claim. (See Mem. and Order at 65.)
Chubb states that it has received $818,528.45 in settlement and restitution payments with respect to these three claims. It further represents that the prejudgment interest on the L.J. Simone claim, from November 2, 1989 to and including September 30, 2005, totals $525,783.09; that the prejudgment interest on the United Utensils claim, from April 23, 1990 to and including September 30, 2005, totals $159,782.78; and that the prejudgment interest on the Techknits claim, from June 25, 1991 to and including September 30, 2005, totals $1,355,159.89. (Veisz Ltr., Exs. B, K.)
Chubb states that it has entered into a settlement agreement with a particular defendant with respect to the Techknits claim, but has yet to receive any payment from that defendant. (See Veisz Ltr. at 3.) Obviously, if Chubb receives any settlement payments from that party, it will reduce Simon's obligation proportionately.
Having reviewed the documents thoroughly, I am satisfied that Chubb's allocations and computations are accurate. I therefore respectfully recommend that judgment be entered against Simon in the amount of $3,094,875.59, plus prejudgment interest of nine percent per annum from October 1, 2005 to the date of entry of judgment. Simon is jointly and severally liable with Alan Rosenkranz with respect to the December 27, 1989 United Utensils claim in the amount of $227,172.89 ($150,453.00, plus $159,782.78 in prejudgment interest, minus $83,062.90 in settlement payments).
Prejudgment interest on the L.J. Simone claim accrues at the rate of $42.51 per day; interest on the Techknits claim accrues at the rate of $200.80 per day; and interest on the United Utensils claim accrues at the rate of $16.52 per day. Thus, total per diem interest on these claims equals $259.93. (See Veisz Ltr., Ex. J.)
5) Joseph Rigney (92 CV 4484)
Judge Amon granted summary judgment against Joseph Rigney, a salvor, on three claims: (1) the April 26, 1991 Criterion Bead claim for $525,424.84; (2) the January 4, 1989 United Utensils claim for $378,795; and (3) the October 9, 1987 Hazan Sportswear Claim for $150,883.40. (Id. at 78.) Judge Amon held that Rigney is "jointly and severally liable with any of his co-conspirators on these three claims" and that his "liability may be subject to reduction to the extent that . . . any other co-conspirator's settlement of this action encompassed the Criterion Bead, United Utensils, and Hazan Sportswear claims." (Id. at 78-79.)
Chubb claims to have received $274,142.76 with respect to these three claims. (Veisz Ltr., Exs. B, K.) Chubb further represents that the prejudgment interest on the Criterion Bead claim, from February 6, 1992 to and including September 30, 2005, totals $645,111.92; the prejudgment interest on the United Utensils claim, from April 12, 1989 to and including September 30, 2005, totals $349,282.23; and the prejudgment interest on the Hazan Sportswear claim, from January 20, 1988 to and including September 30, 2005, totals $223,832.13. Rigney has not objected to these calculations.
Having reviewed the documents thoroughly, I am satisfied that Chubb's allocations and computations are accurate. I therefore respectfully recommend that judgment be entered against Rigney in the amount of $1,949,186.76, plus prejudgment interest of nine percent per annum from October 1, 2005 to the date of entry of judgment. Of that amount, Rigney is jointly and severally liable with Alan Rosenkranz on the January 4, 1989 United Utensils claim in the amount of $441,493.96 ($328,795.00, plus $349,282.23 in prejudgment interest, minus $236,583.27 in settlement and restitution payments).
Prejudgment interest on the Criterion Bead claim accrues at the rate of $126.46 per day; interest on the Hazan Sportswear claim accrues at the rate of $31.04 per day; and interest on the United Utensils claim accrues at the rate of $22.74 per day. Thus, per diem interest on these claims equals $180.24. (See Veisz Ltr., Ex. J.)