Continental Western Insurance v. Country Mutual Insurance Comp ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2962
CONTINENTAL WESTERN INSURANCE COMPANY,
Plaintiff-Appellee,
v.
COUNTRY MUTUAL INSURANCE COMPANY,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 17-cv-01231 — Nancy J. Rosenstengel, Chief Judge.
____________________
ARGUED APRIL 21, 2021 — DECIDED JUNE 24, 2021
____________________
Before FLAUM, SCUDDER, and KIRSCH, Circuit Judges.
FLAUM, Circuit Judge. In the aftermath of a serious collision
between an ambulance and semi-truck, a question lingered:
Who owned the ambulance? This inquiry turned contentious
as two insurance companies looked to sidestep primary cov-
erage obligations arising from three post-accident lawsuits.
The ambulance service’s formation through a joint enterprise
and status as a separately insured party complicated the re-
sultant ownership determination. The district court
2 No. 20-2962
determined that defendant-appellant Country Mutual Insur-
ance Company’s named insured owned the ambulance, hold-
ing Country Mutual responsible for primary coverage for the
defense costs in question. Accordingly, the district court
found that plaintiff-appellee Continental Western Insurance
Company’s named insured did not own the ambulance such
that Continental only owed coverage in excess of Country
Mutual’s primary coverage. After granting summary judg-
ment to Continental on these grounds, the court awarded
Continental attorney’s fees and defense costs equal to the
amounts that Country Mutual should have covered but that
Continental, in fact, incurred to defend its insured in the three
underlying lawsuits. Considering the record evidence
strongly reflects the parties’ intent that Country Mutual’s in-
sured owned the ambulance and considering the reasonable-
ness of the resulting award of attorney’s fees under Illinois
law, we affirm the district court.
I. Background
A. Factual Background
Alhambra and Hamel are two villages located in southern
Illinois. In 1989, the Hamel Fire Protection District (“Hamel
Fire”) and Alhambra Fire Protection District (“Alhambra
Fire”) formed a joint venture called the Alhambra-Hamel
Ambulance Service (the “Service”) to provide ambulance ser-
vice to residents of both fire districts.
On September 17, 2012, a Service-operated ambulance
driven by Theodore Berg, Jr., collided with a semi-truck
owned by Specialized Transportation, Inc. (hereinafter, the
“accident”). The semi-truck driver Daniel Eddinger and his
codriver Rayburn Conway were seriously injured in the
No. 20-2962 3
accident. Ambulance passengers, including Michelle Logue,
were also severely injured.
The accident produced three lawsuits (hereinafter, the
“underlying lawsuits”). 1 Continental defended Hamel Fire in
each of the underlying lawsuits but only after first tendering
them to Country Mutual. Country Mutual ignored each ten-
der. All three cases eventually settled, and Continental paid
all attorney’s fees assessed for Hamel Fire’s defenses.
The question before us now is which insurance com-
pany—Continental or Country Mutual—is responsible for
paying the defense fees that Continental incurred to defend
Hamel Fire in the underlying lawsuits. The parties agree this
question turns exclusively on who owned the ambulance in-
volved in the accident, a 2010 Freightliner Ambulance with a
vehicle identification number 1FVACWDU2ADAN8141
(hereinafter, the “ambulance”).
Several documents shed light on which entity owned the
ambulance. On the one hand, the 2009 “Certificate of Title of
a Vehicle” for the ambulance listed “Alhambra Hamel Ambu-
lance Service” as its “owner.” Likewise, the 2009 “Bill of Sale”
issued by Truck Centers, Inc. listed the ambulance as “Sold
To: Alhambra-Hamel Ambulance Service.” Finally, the “Illi-
nois Traffic Crash Report” that recorded the accident listed
the ambulance “owner” as “Alhambra Hamel, Ambulance
Service.” On the other hand, when they formed the Service in
1 The three lawsuits were entitled: (1) Rayburn Conway, et al. v. Alham-
bra-Hamel Ambulance Service, et al.; (2) Eddinger v. Alhambra-Hamel Ambu-
lance Service, et al.; and (3) Logue v. Eddinger, et al., which then led to a third-
party complaint entitled Specialized Transportation, Inc. v. Alhambra-Hamel
Ambulance Service, et al.
4 No. 20-2962
1989, Hamel Fire and Alhambra Fire reached an “Agreement
to Provide Ambulance Service Jointly.” That 1989 agreement
contained an “Ownership of Property” provision: “All prop-
erty; both real and personal, acquired by Alhambra and Ha-
mel hereunder shall be owned equally by them.” Country
Mutual also provided an affidavit from Hamel Fire’s treas-
urer who attested to the contents of the agreement.
The insurance policies issued by Continental and Country
Mutual, both in effect during the accident, also speak to am-
bulance ownership and coverage priority. At a high level,
there were four insurance policies implicated by the accident.
Of those, only the ones issued by Country Mutual (to its in-
sured, the Service) and Continental (to its insured, Hamel
Fire) are relevant. 2
Turning to the specifics of each policy, we begin with
Country Mutual’s policy. Country Mutual issued a multi-
peril commercial lines insurance policy to the Service, its
named insured, for a period of December 24, 2011, to Decem-
ber 24, 2012 (the “Country Mutual Policy”). The Country Mu-
tual Policy included business auto coverage subject to a
$1,500,000 limit of liability for any one accident or loss, but it
only insured certain “covered autos.” Under “Item 3. – Sched-
ule of Covered Autos You Own,” the Country Mutual Policy
listed the “2010, Freightliner Ambulance,
1FVACWDU2ADAN8141,” specifying the ambulance was a
covered auto.
The Country Mutual Policy stated the company “will pay
all sums an ‘insured’ legally must pay” in applicable dam-
ages. In addition to covering the Service, the Country Mutual
2 Alhambra Fire had a separate insurance policy not now at issue.
No. 20-2962 5
Policy also circuitously covered Hamel Fire. In clarifying who
was insured under the Country Mutual Policy, the “Liability
Coverage” section stated that “insureds” span three catego-
ries: “[y]ou for any covered ‘auto,’” “[a]nyone else while us-
ing with your permission a covered ‘auto’ you own, hire or
borrow,” and “[a]nyone liable for the conduct of any ‘insured’
described above but only to the extent of that liability.”
Under this framework, the Country Mutual Policy insured
the Service (as the primary policy holder), Berg (as the driver
of a covered auto with the Service’s permission), and Hamel
Fire (as one allegedly liable for the conduct of its “agent and
driver” or “employee”—Berg—who qualifies as an “in-
sured”). The district court accepted and Country Mutual did
not challenge in its briefing or at oral argument that Hamel
Fire consequently enjoyed coverage under the Country Mu-
tual Policy. On appeal, we thus accept that as given.
We turn next to Continental’s policy, which Continental
issued to Hamel Fire, its named insured, for a period of Sep-
tember 4, 2012, to September 4, 2013 (the “Continental Pol-
icy”). The Continental Policy included business auto coverage
subject to a $5,000,000 limit of liability for any one accident or
loss. Unlike the Country Mutual Policy, the Continental Pol-
icy did not list the ambulance under its own “Item Three -
Schedule of Covered Autos You Own,” although it listed six
unrelated vehicles. Nevertheless, the ambulance was still an
“auto” covered by virtue of the Continental Policy’s declara-
tions, which stated that any “auto” enjoyed coverage. All told,
both parties do not dispute that the ambulance was a covered
auto under both the Continental Policy and Country Mutual
Policy.
6 No. 20-2962
Both policies also spelled out coverage priority in compa-
rably worded “Other Insurance” provisions. In the Country
Mutual Policy, the “Other Insurance” provision stated: “For
any covered ‘auto’ you own, this Coverage Form provides
primary insurance. For any covered ‘auto’ you don’t own, the
insurance provided by this Coverage Form is excess over any
other collectible insurance.” Similarly, the Continental Pol-
icy’s “Other Insurance” provision (as modified by another
form) stated: “For any covered ‘auto’ you own and any ‘com-
mandeered auto’, this endorsement provides primary insur-
ance. For any covered ‘auto’ you don’t own, the insurance
provided by this endorsement is excess over any other collect-
ible insurance.” Thus, both policies provided primary cover-
age for owned autos and excess coverage for non-owned au-
tos.
B. Procedural Background
Asserting that it was entitled to reimbursement of the at-
torney’s fees it paid to defend Hamel Fire in the underlying
lawsuits, Continental sued Country Mutual in federal district
court, invoking the court’s diversity jurisdiction.
The district court granted Continental’s motion for sum-
mary judgment because, in the court’s view, the Service, and
not Hamel Fire, owned the ambulance. Based on that finding,
and both policies’ “Other Insurance” clauses, the court deter-
mined that Country Mutual owed primary coverage for the
costs to defend Hamel Fire in the underlying lawsuits, while
Continental only owed excess coverage. Therefore, the court
entered a judgment in a civil action instructing that “Country
Mutual had a duty to defend Hamel Fire in the underlying
lawsuits, including the duty to reimburse Continental for the
cost of defending Hamel Fire.”
No. 20-2962 7
Country Mutual next filed a notice of appeal to this Court.
We sent the case back to the district court, however, with in-
struction to calculate damages. Back in the district court, the
parties litigated the issue of attorney’s fees and defense costs
with full briefing and oral argument. In an attempt to chal-
lenge Continental’s desired damages, Country Mutual sought
an evidentiary hearing and attempted to introduce an affida-
vit by Stephen Mudge, the Service’s lead attorney in the un-
derlying lawsuits. The district court ultimately denied both
requests: the former as unnecessary and the latter as un-
timely. The district court then awarded attorney’s fees and
defense costs in the amount of $240,146.18, in addition to pre-
judgment interest of $10,394.72, for a total of $250,540.90. The
court denied Continental’s request for post-judgment interest
but also stated that “upon the entry of an amended judgment
in this case, post-judgment interest will begin accruing at the
rate established by 28 U.S.C. § 1961.” Country Mutual now
appeals, challenging the district court’s entry of summary
judgment and award of attorney’s fees.
II. Discussion
A. Motion for Summary Judgment
Country Mutual first argues that the district court erred in
granting Continental summary judgment. “We review a dis-
trict court’s grant of summary judgment de novo, viewing the
record in the light most favorable to the non-moving party
and drawing all reasonable inferences in that party’s favor.”
McAllister v. Innovation Ventures, LLC, 983 F.3d 963, 967 (7th
Cir. 2020). Summary judgment is appropriate if “there is no
genuine dispute as to any material fact and the movant is en-
titled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A
8 No. 20-2962
genuine dispute of material fact exists ‘if the evidence is such
that a reasonable jury could return a verdict for the nonmov-
ing party.’” Skiba v. Ill. Cent. R.R. Co., 884 F.3d 708, 717 (7th
Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). The parties agree that Illinois law applies in this
diversity action.
We limit our analysis in this section to what both parties
agree is the outcome-determinative question: Which entity
owned the ambulance, either the Service exclusively, as Con-
tinental argues, or Hamel Fire and Alhambra Fire jointly, as
Country Mutual argues? Both policies’ “Other Insurance”
provisions expressly dictate that the insurer for whichever en-
tity owned the ambulance owed primary coverage for de-
fending Hamel Fire in the underlying lawsuits. See also Vedder
v. Cont’l W. Ins. Co., 978 N.E.2d 1111, 1116 (Ill. App. Ct. 2012)
(“[P]rimary liability is generally placed on the insurer of the
owner of an automobile” in Illinois. (citing State Farm Mut.
Auto. Ins. Co. v. Universal Underwriters Grp., 695 N.E.2d 848,
851 (Ill. 1998))). That, in turn, determines whether Country
Mutual had a legal obligation to reimburse the costs Conti-
nental incurred to defend Hamel Fire. See Kajima Const. Servs.,
Inc. v. St. Paul Fire & Marine Ins. Co., 879 N.E.2d 305, 308 (Ill.
2007) (“Illinois courts … apply horizontal exhaustion, which
requires an insured who has multiple primary and excess pol-
icies covering a common risk to exhaust all primary policy
limits before invoking excess coverage.”). We ultimately hold
the district court did not err in granting Continental’s motion
for summary judgment because the record evidence indicates
that the involved parties intended for the Service to be the sole
ambulance owner.
No. 20-2962 9
Under Illinois law, answering the ownership question re-
quires us to determine which entity the parties intended to be
the ambulance owner. Sheary v. State Farm Mut. Auto. Ins. Co.,
566 N.E.2d 794, 795 (Ill. App. Ct. 1991). (“[O]wnership for in-
surance purposes is governed by the intent of the parties” and
“determined as of the time of the collision.”). Here, interpret-
ing the parties’ insurance policies as well as other documents
bears on their intent. See Jadczak v. Mod. Serv. Ins. Co.,
503 N.E.2d 794, 797–98 (Ill. App. Ct. 1987) (insurance policies
and purchase history); Pekin Ins. Co. v. U.S. Credit Funding,
Ltd., 571 N.E.2d 769, 771 (Ill. App. Ct. 1991) (certificate of title);
see also Ind. Ins. Co. v. Pana Cmty. Unit Sch. Dist. No. 8, 314 F.3d
895, 901 (7th Cir. 2002) (“Illinois law requires that provisions
of an insurance agreement be interpreted in the factual con-
text of the case.” (citing Putzbach v. Allstate Ins. Co., 494 N.E.2d
192, 195 (Ill. App. Ct. 1986))).
To understand the parties’ insurance policies, “the general
rules governing the interpretation and construction of con-
tracts govern” because “insurance policies are contracts.”
Clarendon Nat’l Ins. Co. v. Medina, 645 F.3d 928, 933 (7th Cir.
2011) (citing Hobbs v. Hartford Ins. Co. of the Midwest,
823 N.E.2d 561, 564 (Ill. 2005)). Illinois courts strive to “ascer-
tain and give effect to the intention of the parties, as expressed
in the policy language, so long as doing so does not contra-
vene public policy.” Id. (citing Hobbs, 823 N.E.2d at 564). “If
the policy language is unambiguous, courts apply it as writ-
ten.” Id. (citing Hobbs, 823 N.E.2d at 564). Finally, Illinois
courts must examine both policies’ “other insurance” provi-
sions to determine how “[t]he loss will be allocated” between
coinsurers. Bituminous Cas. Corp. v. Royal Ins. Co. of Am.,
704 N.E.2d 74, 79 (Ill. App. Ct. 1998).
10 No. 20-2962
In this case, both the Country Mutual Policy and the Con-
tinental Policy reflect the view that the parties intended the
Service, not Hamel Fire, as the ambulance owner. To begin,
the Country Mutual Policy designated the Service as the am-
bulance owner. The Country Mutual Policy unambiguously
included the ambulance under the “Item 3. - Schedule of Cov-
ered Autos You Own.” See Schuster v. Occidental Fire & Cas.
Co. of N. Am., 30 N.E.3d 458, 465 (Ill. App. Ct. 2015) (finding a
similar “Item Three—Schedule of Covered Autos You Own”
was “plain and unambiguous”). Even alone, this schedule ev-
idences the Service’s intended ownership of the ambulance
and, therefore, Country Mutual’s primary liability because Il-
linois courts generally place primary liability on the insurer
of the automobile owner. See Vedder, 978 N.E.2d at 1116. Lest
there be any doubt, however, the Country Mutual Policy’s
“Other Insurance” provision adds that “for any covered ‘auto’
you own”—and the above-referenced schedule lists the am-
bulance as one such covered auto owned by the Service—the
Country Mutual Policy “provides primary insurance.”
Notably, Country Mutual nowhere documented the view
it advances now that the Service did not own—and that Ha-
mel Fire and Alhambra Fire co-owned—the ambulance.
Country Mutual is correct that insurers do not have a “general
duty to investigate the truthfulness of answers given to ques-
tions asked on an application for insurance.” Brandt v. Time
Ins. Co., 704 N.E.2d 843, 846 (Ill. App. Ct. 1998). However,
Country Mutual’s contention that “Country Mutual’s intent,
if any, is simply not relevant,” is perplexing. Essentially,
Country Mutual argues that one of its own insurance policies
means the exact opposite of what it says. In other words,
Country Mutual would have us decide that the Service did
not own the ambulance, deeming Country Mutual’s express
No. 20-2962 11
contractual language stating that the Service owned the am-
bulance a lie. We decline to adopt a view so contrary to the
plain language found in the Country Mutual Policy. Regard-
less of Country Mutual’s intent, the Country Mutual Policy is
still highly relevant to show the Service’s own intention of
ownership of the ambulance.
Consistent with the parties’ intent that the Service owned
the ambulance in accord with the Country Mutual Policy, the
Continental Policy’s “Schedule of Covered Autos You
Own”—with the “You” now referring to Hamel Fire—did not
list the ambulance as an owned auto. This omission indicates
Continental’s and Hamel Fire’s intentions that Hamel Fire did
not own the ambulance, for the simple fact that if Hamel Fire
did own the ambulance, then both parties would have said so
on the schedule of “Autos You Own.” (Emphasis added). It
follows from this exclusion that, under the “Other Insurance”
provision, Continental only owed Hamel Fire excess coverage
above Country Mutual’s primary coverage. See Kajima,
879 N.E.2d at 308. Therefore, whether we focus on the inten-
tions of the Service (and Country Mutual) or Hamel Fire (and
Continental), the plain language of the two insurance policies
at issue underscores that all relevant parties intended for the
Service, not Hamel Fire, to own the ambulance.
Beyond the insurance policies, three other documents re-
inforce our view that the Service, and not Hamel Fire, owned
the ambulance. First, in 2009, the Service, not Hamel Fire, pur-
chased the ambulance. Per the ambulance’s Bill of Sale, Truck
Centers, Inc. “sold” the ambulance to “Alhambra-Hamel Am-
bulance Service.” Second, the Service, not Hamel Fire, memo-
rialized its ownership of the ambulance by securing the 2009
Certificate of Title, which listed “Alhambra Hamel
12 No. 20-2962
Ambulance Service” as the “owner.” Then, as discussed in de-
tail above, the Service, not Hamel Fire, took out the 2011 in-
surance policy with Country Mutual specifically listing the
ambulance as an “auto” that the Service owned. Third, the
2012 Illinois Traffic Crash Report stated that the “vehicle
owner” was “Alhambra Hamel, Ambulance Service.” Each of
these documents support the Service’s ownership of the am-
bulance, leaving us unconvinced by Country Mutual’s argu-
ment on appeal that “the ambulance was purchased, paid for,
maintained, owned and controlled at all times by [Alhambra
Fire] and [Hamel Fire].”
Deflecting away from these compelling indications of in-
tent, Country Mutual argues that the district court improperly
placed the burden on Country Mutual to prove that Hamel
Fire owned the ambulance. However, the district court was
correct to hold Country Mutual to that burden because Illinois
courts have “[a] prima facie presumption of ownership [that]
arises from a certificate of title,” which “may be rebutted by
competent evidence of actual ownership.” Pekin, 571 N.E.2d
at 771 (citing Klein v. Pritikin, 285 N.E.2d 457, 460 (Ill. App. Ct.
1972)). Although not “conclusive” evidence, because “one can
own an automobile though the certificate of title is in the
name of another,” a certificate of title is still “evidence of title.”
Id. (quoting State Farm Mut. Auto. Ins. v. Lucas, 365 N.E.2d
1329, 1332 (Ill. App. Ct. 1977)). Therefore, Country Mutual
needed, but failed, to rebut the presumption that the Service
owned the ambulance because the Certificate of Title states as
much.
The best evidence that Country Mutual offers to suggest
that Hamel Fire owned the ambulance is Alhambra Fire and
Hamel Fire’s 1989 agreement that created the Service. In that
No. 20-2962 13
agreement, the parties agreed that “All property; both real
and personal, acquired by Alhambra [Fire] and Hamel [Fire]
hereunder shall be equally owned by them.” Country Mutual
believes the 1989 agreement is dispositive as it is the “only
evidence of intent,” ignoring of course all the above-refer-
enced polices and documents. Country Mutual also relies on
the affidavit of Hamel Fire’s treasurer, which parrots that the
“[a]mbulance was jointly owned in equal shares by Hamel
[Fire] and Alhambra [Fire]” based on the 1989 agreement.
Whatever force this agreement might have had in speak-
ing to the parties’ initial intentions in 1989, by 2012—“as of
the time of the collision” from which we must examine the
parties’ intentions—there was overwhelming and overriding
evidence that the parties intended for the Service to own the
ambulance. See Sheary, 566 N.E.2d at 795. Through the
twenty-some intervening years after the initial 1989 agree-
ment, the parties’ intentions evolved. Had intentions not
shifted, the parties would not have taken out insurance poli-
cies providing that the Service owned, and Hamel Fire did not
own, the ambulance, nor would the Certificate of Title and Bill
of Sale both say that the Service owned the ambulance. Even
if the 1989 agreement’s intention that “Alhambra [Fire] and
Hamel [Fire]” would “equally own[]” property acquired un-
der that agreement governed, Country Mutual does not ex-
plain how that directive applies here.
Country Mutual has therefore not sufficiently “rebutted”
by “competent evidence of actual ownership” the presump-
tion that the Service owned the ambulance. Pekin, 571 N.E.2d
at 771 (emphasis added). Stated differently, based solely on
the dated 1989 agreement and a self-serving affidavit regur-
gitating that agreement, “a reasonable jury could [not] return
14 No. 20-2962
a verdict for [Country Mutual]” because there was not a gen-
uine issue of material fact as to which entity owned the am-
bulance. Skiba, 884 F.3d at 717 (quoting Anderson, 477 U.S. at
248). Accordingly, we affirm the district court’s grant of sum-
mary judgment.
B. Attorney’s Fees and Defense Costs
Country Mutual next argues that the district court erred in
awarding Continental attorney’s fees and defense costs equal
to the amount Continental spent to defend Hamel Fire in the
underlying suits. Country Mutual primarily challenges the
reasonableness of that award, but we will first address some
evidentiary decisions that Country Mutual’s appeal impli-
cates.
1. District Court’s Evidentiary Rulings
Country Mutual argues that “[b]y ignoring and striking
the affidavit of Steve Mudge and refusing to have an eviden-
tiary hearing, the trial court created a new standard on fee pe-
titions of just requiring a submission of time entries with a
statement that they have been paid, which is not the standard
for fee petitions requiring that the entire award be vacated.”
We review both decisions for an abuse of discretion. See Mag-
yar v. Saint Joseph Reg’l Med. Ctr., 544 F.3d 766, 770 (7th Cir.
2008) (affidavit); Royce v. Michael R. Needle P.C., 950 F.3d 481,
487 (7th Cir. 2020) (evidentiary hearing).
First, as to the stricken affidavit, we have repeatedly held
that a district court acts properly when it enforces deadlines.
See, e.g., Spears v. City of Indianapolis, 74 F.3d 153, 157 (7th Cir.
1996). “Moreover, even arguments that have been raised [in
the district court] may still be waived on appeal if they are
No. 20-2962 15
underdeveloped, conclusory, or unsupported by law.” Puffer
v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012).
On this issue, the district court said that two days before
the damages oral argument:
[W]ithout any advance notice or leave of Court,
Country Mutual filed an affidavit from Stephen
Mudge, an attorney who represented Country
Mutual’s insured in the Underlying Lawsuits.
The affidavit purported to dispute the accuracy
of several billing entries in Continental’s billing
records.
… [T]he Court heard argument on the issue of
damages. Because Country Mutual’s affidavit
was filed out of time and without leave of
Court—and with no explanation as to why it
was being filed—the Court struck the affidavit
from the record.
(Citations omitted).
The court’s decision to enforce its deadlines and rules for
submitting affidavits was not an abuse of discretion. See
Spears, 74 F.3d at 157. Even if enforcing deadlines may some-
times be an abuse of discretion, Country Mutual built no ar-
gument for such a finding here. On appeal, Country Mutual
again provides no reason for why it should have been allowed
to untimely and improperly file the Mudge affidavit, and it
does not engage with the district court’s reasoning, so the ar-
gument is waived. See Puffer, 675 F.3d at 718.
Second, as to the stricken evidentiary hearing, we have
held “it is not an abuse of discretion to decline to conduct an
evidentiary hearing ‘that would only address arguments and
16 No. 20-2962
materials already presented to the court in the parties’ brief-
ings.’” Royce, 950 F.3d at 487 (quoting Pickett v. Sheridan Health
Care Ctr., 664 F.3d 632, 652 (7th Cir. 2011)). The district court
ultimately struck the evidentiary hearing because Country
Mutual already had “ample opportunity to provide any evi-
dence and to set forth any and all objections to the claimed
attorneys’ fees and defenses costs within its briefing.” As dis-
cussed in greater detail below, the district court had consid-
erable evidence from Continental to support its award of at-
torney’s fees. Country Mutual could have challenged that ev-
idence however it pleased at the appropriate time. As Coun-
try Mutual opted not to take that opportunity, the court was
free to foreclose an opportunity for Country Mutual to pro-
vide evidence anew. See id.
2. District Court’s Award of Attorney’s Fees and De-
fense Costs
More directly, Country Mutual challenges the district
court’s award of attorney’s fees and defense costs as unrea-
sonable. Because “[d]istrict courts have wide discretion in de-
termining the appropriate amount of attorneys’ fees and
costs,” our review “is limited to a highly deferential abuse of
discretion standard.” Spegon v. Cath. Bishop of Chi., 175 F.3d
544, 550 (7th Cir. 1999).
In Illinois, fee awards must always be reasonable, see Plat-
inum Supplemental Ins., Inc. v. Guarantee Tr. Life Ins. Co.,
989 F.3d 556, 571 & n.7 (7th Cir. 2021) (citing Powers v. Rockford
Stop-N-Go, Inc., 761 N.E.2d 237, 240 (Ill. App. Ct. 2001)), and
“the party seeking the fees … always bears the burden of pre-
senting sufficient evidence from which the trial court can ren-
der a decision as to their reasonableness.” Kaiser v. MEPC Am.
Props., Inc., 518 N.E.2d 424, 427 (Ill. App. Ct. 1987).
No. 20-2962 17
However, the attorney’s fees in this case were paid, and
Illinois courts have said “[t]he prima facie reasonableness of a
paid bill can be traced to the enduring principle that the free
and voluntary payment of a charge for a service by a con-
sumer is presumptive evidence of the reasonable or fair mar-
ket value of that service.” Arthur v. Catour, 833 N.E.2d 847, 854
(Ill. 2005) (citing cases); see also Pickett, 664 F.3d at 653–54 (not-
ing, albeit in the context of federal law, that the “best evidence
of whether attorney’s fees are reasonable is whether a party
has paid them.” (quoting Cintas Corp. v. Perry, 517 F.3d 459,
469–70 (7th Cir. 2008))).
Here, Continental presented the district court with de-
tailed line-item entries for all its bills paid to defend Hamel
Fire in the underlying lawsuits. Continental also furnished an
affidavit by an employee, Keith Keller, confirming that Con-
tinental paid them.3 Thus, the district court’s award of that
amount was presumptively reasonable. See id.Setting aside the evidence that the bills were paid, we con-
clude the district court’s award of $240,146.18 in attorney’s
fees and defense costs was reasonable—and therefore not an
abuse of discretion. Country Mutual has failed to show other-
wise. Under Illinois law, a “petition for fees must specify the
services performed, by whom they were performed, the time
expended thereon and the hourly rate charged therefor.”
3 In light of the line-item entries and other evidence presented by Con-
tinental, we are unpersuaded by Country Mutual’s argument that various
documents failed to satisfy Continental’s burden. What is more, on appeal
we are not concerned with whether Continental in fact met its burden but
rather whether the district court abused its discretion in finding that Conti-
nental satisfied that burden, a highly deferential bar. See Spegon, 175 F.3d
at 550.
18 No. 20-2962
Kaiser, 518 N.E.2d at 427. A “mere compilation of hours mul-
tiplied by a fixed hourly rate or bills issued to the client” is
typically insufficient. Id. Additionally, a trial court must con-
sider a host of factors to arrive at a reasonable award, includ-
ing “the skill of the lawyers, the difficulty and importance of
the case, usual charges for similar services, the benefit to the
client, and ‘whether there is a reasonable connection between
the fees and the amount involved in the litigation.’” Abellan v.
Lavelo Prop. Mgmt., LLC, 948 F.3d 820, 835 (7th Cir. 2020)
(quoting Kaiser, 518 N.E.2d at 427–28); Kaiser, 518 N.E.2d at
428 (instructing courts to also consider “the nature of the
case” and “degree of responsibility required”).
The district court began by noting how Continental “pro-
vided detailed billing records for the attorneys who provided
the defense to Hamel Fire” to support the $240,146.18 of attor-
ney’s fees and defense costs requested. This amount reflected
attorney’s fees Continental paid to two law firms ($20,466.94
and $180,010.30) as well as $39,669.02 in defense costs. 4
With respect to the attorney’s fees, far from a “mere com-
pilation of hours multiplied by a fixed hourly rate,” Kaiser,
518 N.E.2d at 427, Continental provided the district court
with hundreds of pages of exhibits containing line entries for
every dollar of fees it incurred to defend Hamel Fire in the
underlying lawsuits. Each entry contained the name of the at-
torney performing the task, the line-item number, the task
4 Our calculation of these amounts ($20,466.94 + $180,010.30 +
$39,669.02) resulted in $240,146.26, not the $240,146.18 that the district
court awarded. Given the de minimis difference of eight cents and the af-
firmative miscalculations Continental provided the district court in its
Brief Regarding the Calculation of Damages, we deem any potential chal-
lenge to the calculation of the fees on this basis waived.
No. 20-2962 19
date, the fee-approval date, a description of work, the time
spent on the task, the hourly rate charged, and the total
amount billed. Therefore, Continental’s specifications satis-
fied its obligation to detail “the services performed, by whom
they were performed, the time expended thereon and the
hourly rate charged therefor.” Id.With respect to the $39,669.02 in defense costs, the court
noted how Continental “submitted documentation of all de-
fense fees and costs it paid in defending Hamel Fire.” As the
court summarized, Keller attested in his affidavit that Conti-
nental incurred these costs for “court reporting, professional
medical record review and analysis, printing services, and fo-
rensic crash analysis costs.” Continental’s brief to the district
court also contained an item-by-item breakdown of the corre-
sponding amounts paid.
Without basis, Country Mutual argues that Continental’s
records were deficient. It contends that Continental’s billing
entries reflected multiple attorneys improperly performing
the same tasks. It also argues Continental provided “no work
product and no explanation” for its invoices. However, Coun-
try Mutual has not pointed to—and we have not found—
caselaw precluding more than one attorney working on a task
or requiring plaintiffs produce work-product evidence to jus-
tify already detailed (and in this case, paid) fee invoices.
Moreover, Country Mutual did not identify a single duplica-
tive, insufficiently described, or otherwise deficient entry. See
Abellan, 948 F.3d at 836 (“[The defendant] does not challenge
the specifics of [the plaintiff’s] attorneys’ hours expended or
hourly rates.”). As such, Country Mutual’s unsubstantiated
challenges to Continental’s evidence are unavailing.
20 No. 20-2962
After discussing the evidence supporting Continental’s
fee request, the district court proceeded to discuss the many
factors Illinois law requires courts to consider when assessing
the reasonableness of attorney’s fees. Specifically, it high-
lighted “the skill of the lawyers … [and] usual charges for
similar services.” See id. at 835. Given the length of the litiga-
tion prior to this lawsuit, Continental retained two firms over
more than five years. It hired an experienced litigator at Heyl,
Royster, Voelker & Allen, P.C., who accumulated fees of
$20,466.94 for representation from May 2013 to July 2015. The
court noted that Heyl Royster’s rates were “in line with, and
arguably lower than, the usual and customary rates charged
by attorneys in this jurisdiction.” Continental later transferred
Hamel Fire’s defense to two experienced trial lawyers at Mul-
herin, Rehfeldt & Varchetto, P.C., who amassed fees of
$180,010.30 for their representation of Hamel Fire from April
2015 until all the underlying lawsuits were dismissed by Oc-
tober 2018. These fees, too, were based on Mulherin’s custom-
ary and reasonable hourly rates for partners and associates.
Further, the court addressed the labor involved, benefit to
the client, and complexity of the case. See Kaiser, 518 N.E.2d at
428. To that end, the court noted the extensive efforts de-
manded of Continental’s lawyers for the underlying lawsuits
with two persisting for nearly six years and a third for more
than three years. As the court noted, those matters “involved
significant discovery and motion practice, mediation, exten-
sive review of medical records, and accident reconstruction
services.”
As to the “degree of responsibility required” of the law-
yers, id., the district court noted how the retained lawyers
“took on full responsibility in the management of the
No. 20-2962 21
[underlying lawsuits], including litigation strategy and dis-
covery.” Likely attributable to hard work of its lawyers, the
court also acknowledged that “Hamel Fire reaped significant
benefits from the defense provided,” another factor suggest-
ing the reasonableness of the fees. Abellan, 948 F.3d at 835. In
fact, Hamel Fire had been released from each of the underly-
ing lawsuits and avoided having to pay significant contribu-
tions to the settlements in those suits. Country Mutual does
not expressly challenge these findings.
Finally, as to complexity, Kaiser, 518 N.E.2d at 428, the
court acknowledged that the underlying lawsuits were “more
complex than a typical motor vehicle collision case” because
there were substantial injuries that “required significant med-
ical record review and analysis, several depositions, and fo-
rensic accident reconstruction,” and because of the compli-
cated interplay between the private individuals, insurers, and
municipal entities involved. Based on potential monetary im-
pact alone, the sizable liability in question elevated this to a
high-stakes case. On appeal, Country Mutual baldly asserts
there was “nothing complex” about vicarious liability for “the
operator of a vehicle involved in an automobile accident.”
Country Mutual, however, fails to specifically address any of
the district court’s considerations. At a minimum, Country
Mutual has not explained why the court abused its discretion
in appreciating the above complexities.
Based on the district court’s comprehensive examination
of the Illinois factors relevant to attorney’s fees and defense
costs, and Country Mutual’s advancement of weak argu-
ments to challenge this analysis, we hold the district court did
not abuse its discretion and affirm the district court’s award
of $240,146.18 in attorney’s fees and defense costs. As Country
22 No. 20-2962
Mutual makes no challenge to the district court’s award of
pre-judgment interest of $10,394.72, we affirm the district
court’s entire award of $250,540.90.
III. Conclusion
For these reasons, we AFFIRM the district court’s entry of
summary judgment for Continental and award of attorney’s
fees, defense costs, and prejudgment interest.