Hamilton v. Nationwide Mutual Fire Insurance Company

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
PAUL HAMILTON,
. C.A. No. K16C-03-012 WLW
Plaintiff, : Kent County
v.
NATIONWIDE MUTUAL FIRE
INSURANCE COMPANY, a
foreign corporation,
Defendant.
Submitted: September 28, 2018
Decided: November 16, 2018
ORDER
Plaintiff’s Motion for Allowance of Attorney’s Fees and Costs
Granted.
William D. Fletcher, Jr., Esquire of Schrnittinger and Rodriguez, P.A., Dover,
Delaware, attorney for the Plaintiff.
Louis J. Rizzo Jr., Esquire of Reger, Rizzo, and Darnall LLP, Wilmington, Delaware,
attorney for the Defendant.
VVITHAM, R.J.
Paul Hamilton v. Nationwide Mutual Fire Ins. Co.
C.A. No. Kl6C-03-012 WLW
November 16, 2018
Upon consideration of the Motion for the Allowance of Attorneys’ Fees and
Costs filed by the Plaintiff, Paul Hamilton, pursuant to 18 Del. C. § 4102 and Del.
Super. R. 54(d) (Rule 54(d)), the opposition of the Defendant, Nationwide Mutual
Fire Insurance Co., and the record of the case, it appears that:
1 . On January 23, 201 5 , the Defendant issued a Homeowner’ s Insurance policyl
to the Plaintiff for coverage of his dwelling. The insurance policy’ s maximum payout
Was 8252,600 under Section I, Coverage A of the policy.
2. On or about March 17, 2015, a fire damaged the Plaintiff’ s dwelling. The
Defendant conducted a examination of the damage and estimated the total damages
amounted $ 127,437.03 .2 Initially, the Plaintiff did not further object to or question the
repair figures computed by the Defendant.
3. The Defendant issued a check to the Plaintiff for $127,437.03, less
deductibles and reserves. However, the Plaintiff then rejected the Defendant’s
estimate, and demanded the policy’ s maximum payout, prompting the present action3
before the Court.
4. After a lengthy procedural history, including a Pre-Trial stipulation that
included the Plaintiff’ s request for costs and attorneys’ fees,4 the Defendant extended
1 Nationwide Insurance Policy Number 52 07 MP 121911.
2 Pre-Trial Stipulation and Order at 1.
3 The Plaintiff agreed with his attorneys to a contingent fee arrangement
4 Pre-Trial Stipulation and Order at 2.
Paul Hamilton v. Nationwide Mutual Fire Ins. Co.
C.A. No. K16C-03-012 WLW
November 16, 2018
a $30,000 offer of judgment to the Plaintiff" pursuant to Delaware Superior Court
Rule 68 (Rule 68). However, the Rule 68 offer Was silent regarding any reference to
attomeys’ fees and other costs being included as part of the $30,000. Nevertheless,
the Plaintiff immediately accepted and filed with the Court on the same day.
5. Two weeks later, on June 14, 2018, the Plaintiff filed the present motion for
allowance of attorneys’ fees and costs pursuant to section 4102 and Rule 54(d). In
response to the Defendant’s reply, the Plaintiff later supplemented their motion with
a certification concerning their attorneys' fees totaling $41,725.00.6 The requested
amount for costs amounted to $l,389.75.
6. “In an action at law, attorneys' fees Will not be awarded unless clearly
397
provided for by statute or contract. Here, the applicable Delaware statute
authorizing attorney’s fees as costs in insurance cases is a fee shifting statute, 18 Del.
C. § 4102. Section 4102 provides:
[t]he Court upon rendering judgment against any insurer upon a policy of
property insurance as ‘property’ insurance is defined in [18 Del. C.] § 9048 [
], shall allow the plaintiff a reasonable sum as attorney's fees to be taxed as
5 The Defendant’s offer was procedurally made in accordance with Rule 68.
6 Plaintiff s Ceitification of Attorneys’ Fees at 2. This figure Was based on the hourly rates
of $375.00 for Mr. William D. Fletcher, Jr., Esq. encompassing 54.4 hours and $250.00 for Ms.
Dianna E. Louder, Esq. for 83.5 hours.
7 Honaker v. Farmer's Mutual Ins. Co., 313 A.2d 900, 904 (Del. Super. Nov. 5, 1973) (citing
Great American Ina'emnity Co. v. State,`88 A,2d 426 (Del. 1952)).
8 The Plaintiff’ s home qualifies as “property” in accordance with 18 Del. C. § 904.
3
Paul Hamilton v. Nationwide Mutual Fire Ins. Co.
C.A. No. Kl6C-O3-012 WLW
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part of the costs.”9
7. Pursuant to Rule 54(d), the recovery of costs by the prevailing party shall be
allowed upon application to the Court within ten days of the final judgment’s entry.
Here, the Plaintiff’ s application was timely and thus the Court has discretion to award
those costs that often include filing and other service fees.10
8. Rule 68 authorizes a defendant to make an offer of judgment and is modeled
after the Federal Rules of Civil Procedure Rule 68.ll Rule 68 encourages settlements
between opposing parties to avoid litigation by prompting parties to balance the risks
and costs of litigation against the likelihood of success at tria
l.12 The rule provides:
[a]t any time more than [ten] days before the trial begins a party defending
against a claim may serve upon the adverse party an offer to allow judgment
to be taken against the defending party for the money or property or to the
effect specified in the offer, with costs then accrued. If within [ten] days after
the service of the offer the adverse party serves written notice that the offer is
accepted, either party may then file the offer and notice of acceptance together
With proof of service thereof and thereupon the Clerk shall enter judgment13
9. The crux of the Plaintiff s argument is straight forward. The Defendant did
(1985).
9 18 Del. C. § 4102 (emphasis added).
10 Arroyo v. Allstate Insurance Group, 2017 WL 2930925, at *l (Del. Super. July 6, 2017).
11 Baker v. Hamm, 2004 WL 43230, at *1 (Del. Super. Jan. 6, 2004).
12 Cahall v. Thomas, 906 A.2d 24, 26 (Del. 2006) (citing Marek v. Chesny, 473 U.S. l, 5
13 Super. Ct. Civ. R. 68.
Paul Hamilton v. Nationwide Mutual Fire Ins. Co.
C.A. No. Kl6C-03-012 WLW
November 16, 2018
not specifically include attorneys’ fees and costs in its Rule 68 offer, therefore the
Plaintiff is entitled to both pursuant to section 4102 and Rule 54(d).
10. As a preliminary matter however, the Court must address the Defendant’s
counter-argument that attorneys’ fees and costs were always a part of the parties’
negotiations throughout the process and were included in the Rule 68 offer of
judgment. ln the alternative, the Defendant urges the Court to void the Rule 68
agreement due to the lack of a “meeting of the minds.” ln support, the Defendant cites
Ceccola v. State Farm Mut. Auto. Ins. Co.,14 a case Where the Delaware Supreme
Court reversed the lower court and voided a Rule 68 offer of judgment.15
1 1. However, the Defendant’s reliance on Ceccola appears to be misplaced ln
fact, our Supreme Court’s reversal was based on facets of that case not found in the
present case. First, while both cases involve a Rule 68 offer and acceptance, in
Ceccola, the plaintiff realized a mistake in the agreement and revoked acceptance,
both verbally and via email.16 ln our case, there Was no revocation of acceptance by
the Plaintiff. Second, the defendant in Ceccola manipulated the Court by deceiving
the Prothonotary and filing the earlier acceptance; turning a previously extinguished
contract into a final judgment.17 ln this case, no such “manipulation of court
14 58 A.3d 982 (rabie), 2012 WL 3029546 (Dei. 2012).
15 Ceccola, 2012 WL 3029546, at *3.
16 1a
17 Id.Paul Hamilton v. Nationwide Mutual Fire Ins. C0.
C.A. No. Kl6C-03-012 WLW
November 16, 2018
processes” occurred that would suggest voiding the Rule 68 agreement.18 In short,
Ceccola is less a “meeting of the minds” case and more a case about an attorney’s
unethical and possibly fraudulent behavior.
12. It is clear to the Court, based on the record, including the Pre-Trial
Stipulation, that both parties were aware that the Plaintiff sought costs and attomeys’
fees pursuant to 18 Del. C. § 4102.19 Thus, both parties Were on notice of the
Plaintiff’s intentions and the record is silent to anything to the contrary that would
suggest a lack of “meeting of the minds.”
13. Even if the Court was convinced by the Defendant’s argument and found
that there had been no “meeting of the minds” regarding the Defendant’s Rule 68
offer of judgment, the Court is (l) persuaded by legal precedent that holds
ambiguities in Rule 68 offers are construed against the offeror20 and (2) bound by
legal precedent that holds the offeror responsible for specifying Rule 68 offer of
judgments to include costs and attorneys’ fees.21
14. In Marek,22 the Supreme Court of the United States (SCOTUS) held that
18 CeCCOla, 2012 WL 3029546, at *3.
19 Pre-Trial Stipulation and Order at 2.
20 Allen v. Freeman, 2016 WL 775788, at *2 (S.D.G.A. Feb 25, 2016)(citingLima v. Newark
Police Dep’t., 658 F.3d 324, 333 (3rd Cir. 2011) (the Third Circuit found the defendant's offer
ambiguous, interpreted it against the offeror, and held that the offer did not include costs.)).
21 Marek v. Chesny, 473 U.S. l (1985).
22 Ia'.
Paul Hamilton v. Nationwide Mutual Fire Ins. Co.
C.A. No. Kl6C-03-012 WLW
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costs under Fed. R. 68 included fees where the underlying fee shifting statute defined
costs as inclusive of attorneys fees, and are recoverable.23 SCOTUS further
acknowledged:
[i]f an offer recites that costs are included or specifies an amount for costs, and
the plaintiff accepts the offer, the judgment Will necessarily include costs. If,
on the other hand, the ojj”er does not state that costs are included and an
amount for costs is not specified the court will be obliged by the terms of the
Rule to include in its judgment an additional amount which in its discretion it
determines to be sufficient to cover the costs.24
15. In support of his position, the Plaintiff cites several post Marek federal
cases that applied Marek and contends that Delaware courts apply Rule 68 as its
federal counterpart is applied by virtue of Rule 68 being modeled after the former.25
In one of those cases, Lima,26 the Court stated:
[T]he [o]ffer was valid and was silent as to fees and costs. That fact begins and
ends our analysis.27 In interpreting a Rule 68 offer of judgment, courts must
23 Marek, 473 U.S. at 9.
24 Marek, 473 U.S. at 6 (citing Delta Air Lines, Inc. v. Augusta, 450 U.S. 346, 362, 365
(1981) (Powell, J., concurring) (emphasis added)).
25 The Plaintiff cites 10 cases in support of his position but only Marek was cited by a
Delaware court. Nevertheless, the Plaintiff correctly states that Rule 68 is constructed and applied
by Delaware courts in a similar fashion to its federal counterpart See also Baker, 2004 WL 43230,
at *l (the Superior Court applying Rule 68's ten day interval in the same way as the federal rule).
26 658 F.3d 324 (3rd Cir. 2011).
27 Lima, 658 F.3d at 333 (emphasis added).
7
Paul Hamilton v. Nationwide Mutual Fire Ins. Co.
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not consider extrinsic evidence or the intentions of the jr)arties.28
16. Delaware courts have applied Rule 68 in both the pre and post Marek legal
landscapes. In Ferrari v. New Castle Mut. lns. Co. ,29 a pre-Marek case, the plaintiff
brought a claim under section 4102 after accepting a Rule 68 offer of judgment.30
However, the Rule 68 offer failed to mention attorney’s fees.31 In denying Ferrari’s
motion for attorneys’ fees, Judge Balick held that “costs then accrued” referred to
costs routinely allowed to a prevailing party and entered by the Prothonotary, but not
attorney’s fees when they are not mentioned in the Rule 68 opper or acceptance.32
17. In post Marek cases however, Delaware courts appear to have shifted its
application of Rule 68 to align With its sister federal district courts. For example in
Adams, a case similar to both Ferrari and our present case, Nationwide (ironically the
defendant in that case) refused to pay the plaintiff under the terms of an insurance
policy involving the plaintiff s damaged vehicle.33 During the negotiations between
the parties, Nationwide made a Rule 68 offer of judgment under the following terms:
The defendant, Nationwide Insurance Company, pursuant to Court of Common
28 Id. (Emphasis added).
29 1977 WL 182509 (Del. Super. Apr. 29, 1977).
30 Ferrari, 1977 WL 182509, at *l.
31 Id. at *1.
32 Id. (Emphasis added).
33 Adams v. Nationwide Ins. Co., 1986 WL 716911, at *1 (Del. Com. Pl. April 25, 1986).
8
Paul Hamilton v. Nationwide Mutual Fire Ins. Co.
C.A. No. Kl6C-03-012 WLW
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Pleas Civil Rule 68, hereby offers to allow judgment to be taken against it in
the amount of $3,700.00, together with [ c] ourt costs accrued to the time of the
making of this offer, lf this offer is not accepted within ten [ ] days and the
ultimate result is not more favorable than this offer, all [ c] ourt costs, including
expert witness fees, incurred subsequent to the making of this offer shall be
taxed to the plaintiffs.”
Again, the Rule 68 offer was silent regarding the inclusion of attorneys’ fees.34 As in
our case, the plaintiffs promptly filed acceptance and judgment was entered Four
days later, the plaintiffs filed for attorneys’ fees pursuant to section 4102.35 Judge
Trader, in Adams, found for the plaintiff and held:
Since [section] 4102 includes attorney's fees as a “part of costs,” a Rule 68
offer of judgment providing for “costs then accrued” must be read to include
“costs and attorney's fees then accrued.”36
18. In this case, the Defendant’s Rule 68 offer of judgment stated the
following:
Pursuant to Superior Court Civil Rule 68, Defendant Nationwide...offers to
allow judgment to be entered against it in the above-captioned matter iri the
amount of [ ] $30,000.00. This offer of judgment is made solely for the
purposes specified in Rule 68 and is not to be construed as an admission that
the Defendant is liable in this action or that the Plaintiff has suffered damage.37
34 Id.35 Adams,1986 WL 716911, at *1.
36 Id. at *2 citing Del. Com. Pl. R. 68 (emphasis added.)
37 Louis J. Rizzo, Esq., Offer of Judgrnent, Nationwide to Hamilton, June l, 2018.
9
Paul Hamilton v. Nationwide Mutual Fire Ins. Co.
C.A. No. Kl6C-03-012 WLW
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As in Adams and Lima, nowhere in the present Rule 68 offer is any mention of
attomeys’ fees or costs. Following precedent established in Marek and its progeny,
the plaintiff is entitled to those fees and costs.
19. Delaware’s legislative will is clear and is supported by Marek and its
progeny. Rule 68 offers of judgment must state the inclusion of attomeys’ fees and
costs in the offer amount, if those are to be included Since Delaware courts apply
Rule 68 in the same fashion as its federal counterpart, the fact that the Defendant did
not specifically state attomeys’ fees and other costs were included, ends our
analysis311 regarding whether the Plaintiff is entitled to attomeys’ fees and costs.
20. The Court now turns its analysis towards establishing what portion of the
requested attomeys’ fees and costs are “reasonable.”39
21 . The Court will first address the Plaintiff’ s request for costs pursuant to Rule
54(d). In this case, the costs will be awarded to the Plaintiff. The Plaintiff submitted
documentation supporting their costs and, upon examination, none of those appear
to be unreasonable Also of note, the Plaintiff has not requested costs that accrued
after the acceptance of the Rule 68 offer on June l, 2018. This suggests to the Court
that the Plaintiff is not attempting to recover unauthorized costs. Most importantly,
the Defendant has not directly objected to the Plaintiff s motion for costs.40 As a
38 Lima, 658 F.3d at 333.
3918 Del. C. §4102.
40 D. Reply at 5. The only time Defendant addresses the additional costs is when they state
filing and service fees “might be recoverable as Rule 54 costs” based on the offer of judgment.
10
Paul Hamilton v. Nationwide Mutual Fire Ins. Co.
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result, the Court exercises its discretional authority and awards the Plaintiff costs of
$1,389.75.
22. Turning to the question of reasonable attomeys’ fees, the Court also has
discretion in awarding reasonable fees under section 410241 that are within the scope
of the statute.42 Here, based on application of the Co)c43 factors, the Court will award
reasonable attorneys’ fees to the Plaintiff.44
23. But, the Court must determine what amount of the requested fees are
reasonable.45 The Delaware Rules of Professional Conduct provide factors to consider
41 Nassau Gallery Inc. v. Nationwide Mut. Fire Ins. Co., 2003 WL 22852242, at *2 (Del.
Super. Nov. 18, 2003) (citing Heil v. Nationwide Mutual Insurance Co., 371 A.2d 1077, 1078 (Del.
1977)).
42 United States Auto Ass ’n Properties Fund, Inc. v. Burns, 640 A.2d 655 (Table), 1994 WL
91128, at *2 (Del. 1994).
43 General Motors Corp. v. Cox, 304 A.2d 55 (Del. 1973).
44 The Court is displeased with the apparent lack of communication by the Plaintiff after the
Rule 68 offer was tendered to him and agrees with the Defendant that the Plaintiff has had a “gotcha
moment.”
43 In considering the reasonableness of the attorneys fees request, the Court has examined 10
Del. C. § 3912 for comparison to the present case. Section 3912 provides:
[i]n all causes of action, suits, matters or proceedings brought for the enforcement of any
note, bond, mechanics lien, mortgage, invoice or other instrument of writing, if the plaintiff
or lien holder in the action, suit or proceeding recovers judgment in any sum, the plaintiff or
lien holder may also recover reasonable counsel fees, which shall be entered as a part of the
judgment in the action, suit or proceeding. Such counsel fees shall not in any such action, suit
or proceeding, exceed 20 percent of the amount adjudged for principal and interest. Such
counsel fees shall not be entered as a part of such judgment unless the note, bond, mortgage,
invoice or other instrument of writing sued upon, by the terms thereof, expressly provides
for the payment and allowance thereof...
ll
Paul Hamilton v. Nationwide Mutual Fire Ins. Co.
C.A. No. Kl6C-03-012 WLW
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in assessing reasonable attorney's fees. Delaware Professional Conduct Rule 1.5(a)
requires consideration of the following factors, outlined in Cox:
1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
2) the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer;
3) the fee customarily charged in the locality for similar legal services;
4) the amount involved and the results obtained;
5) the time limitations imposed by the client or by the circumstances;
6) the nature and length of the professional relationship with the client;
7) the experience, reputation, and ability of the lawyers performing the service;
8) whether the fee is fixed or contingent;
9) the losing party’s ability to pay the attomeys’ fees; and
10) Whether counsel has received or expects to receive compensation from any
other source.46
However, this Court, in Millcreek Shopping Center, LLC v. Jenner Enterprises, Inc., 2017
WL 1282068, at *5 (Mar. 31, 2017) cited Concord Steel, Inc. v. Wilmington Steel Processing Co.,
Inc., et al., 2010 WL 571934, at *2 (Del. Ch. Feb. 5, 2010) affd, 7 A.3d 486 (Del. 2010), where the
Chancery Court held that “other instrument of writing,” refers to writings that evidence a debt, but
do not fit squarely within the scope of one of the preceding items. That is, to qualify as an “other
instrument of writing” within the meaning of section 3912, a writing would have to evidence a
debtor-creditor relationship Here, it does not appear to the Court that section 3912 applies.
46 Cox, 304 A.2d at 57 (stating that there was no logical or policy reason for having different
standards or tests for the establishment of “reasonable” counsel fees for a divorce case under 13 Del.
C. § 153 l(a) and a Workmen’s compensation case under 19 Del. C. § 23 50).
12
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24. In the past, Delaware courts awarded reasonable attomeys’ fees differently.
For example, this Court, in State F arm Mut. Automobile Ins. Co. v. Sanders47,
affirmed a Court of Common Pleas decision awarding attomeys’ fees based on the
amount of the claim.48 The Court rejected the applicant attorney’s request of
$ l ,344.70 and awarded him $839.95, precisely the same amount as the claim.49
25. More recently, it appears that the Delaware courts have moved towards
reasonableness being one-third of the judgment. In Nassau Gallery, the Court found
requested attorneys’ fees totaling $13,862.50, based on a $ l ,145.00 judgment, Were
unreasonable50 and applying the Cox factors, determined that a reasonable fee Would
be $381.67, approximately one-third of the judgment.51 The Court stated that
$13,862.50 in attomeys’ fees was unreasonable based on:
1) the amount of attorney's fees requested Was more than ten times the amount
of the judgment obtained;
2) the issues disputed were not complex and the trial lasted only one day;
3) the legal services provided were typical; and
47 1978 WL 194986 (Del. Super. July 26, 1978).
48 Sanders, 1978 WL 194986, at *3.
49 Id. at *1.
30 Nassau Gallery Inc., 2003 WL 22852242, at *4 (stating fee’s were unreasonable, even
before it considered the Cox factors).
51 Nassau Gallery Inc., 2003 WL 22852242, at *1.
13
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4) the judgment rendered was only $1,145.00.32
26. ln Manubay,53 the Delaware Court of Common Pleas also found that a
reasonable attorney's fee for a debt action was one-third of the underlying j udgment.54
The Manubay court’ s award was arrived at due to “the lack of complexity of the case;
the relative ease of issues being disputed; the brevity of the trial; the minimal amount
of legal services provided; and the amount of the judgment awarded”55
27. In this case, the Plaintiff has asked for attorneys’ fees that amount to
approximately 1.356 times greater than that of the Rule 68 offer, Following a hearing
on the Plaintiff’ s application and Defendant’ s response, the Court has determined that
$30,000 is a reasonable amount for attomeys’ fees. In making its determination, the
Court has considered the following in connection with each Cox factor:
1) the Plaintiffs attorneys expended a total of 54.4 hours billed at 8375.00 and
85.3 hours billed at $250.00 per hour. Despite the facts of this case not being
unduly complicated, the case has a two and a half year procedural history;
2) despite the Plaintiff’ s attorneys stating that there “Was a high likelihood that
52 Id. at *1.
53 Manubay v. Stanton Medical Building Condominium Council, 2000 WL 33275029 (Del.
Com. Pl. Jan. 5, 2000) (Although Manubay did not discuss section 4102, it examined a similar
regulation that contemplated the award of attomeys’ fees and the fee’s reasonableness.)
54 Manubay, 2000 WL at *2. The Plaintiff iri Manubay requested attomeys’ fees in the
amount of $7,500 ($6,3 00 based 36 hours of work and an additional $1,200 for work in a Justice of
the Peace trial) that resulted on a collection of $2,551.14.
55 Id.14
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the acceptance of this case would preclude other employment based on the
number of hours dedicated to this litigation,” the attorneys do not state actual
client preclusion or other negative impact/s their dedication to the present
litigation has resulted in;
3) the fees charged by the Plaintiff’s attorneys are within the range of fees
customarily charged by attorneys of like experience in Kent County;
4) the Plaintiffs economic interests were advocated for, resulting in the Rule
68 settlement acceptance of $30,000;
5) the time limitations presented by the Plaintiff s insurance policy required the
Plaintiff to file a claim within one year and was fiirther expedited due to the
Plaintiff s living and mortgage situation;
6) the Plaintiff was represented by the same counsel for over two and a half
years, however, there may be issues of fact regarding the reasons behind the
litigation’s delay;
7) the Plaintiffs attorneys have been members of the Bar for forty years and
two years respectively;
8) the fee was on a contingent basis;
9) with respect to the ninth Cox factor, the Plaintiff did not comment on this
factor, however, the Court will assume that the Defendant, a major insurance
provider, has the ability to pay reasonable attomeys’ fees; and
10) the Court can not make a determination since the Plaintiff did not
comment.
15
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28. Here, it appears that the majority of the Cox factors tilt favorably towards
the Plaintiff's attorneys and thus deserving of reasonable attomeys’ fees.
Additionally, the Court notes the lengthy procedural history of the case, where issues
of the case were actively litigated by counsel. As such, the Court feels it would be
unfair to apply the one-third standards utilized in Manubay and Nassau Gallery.
lnstead, the Court, supported by Sanders and its Cox analysis, finds $30,000 to be a
reasonable sum to award to the Plaintiff for attorneys’ fees.
29. After reviewing all of the above factors and the circumstances surrounding
each one, the Plaintiff s motion for attorney fees and costs is GRANTED pursuant
to Rule 54(d) in the amount of $3 0,000 plus costs in the amount of $ l ,3 89.75, totaling
a total award of3l,389.75.
IT IS SO ORDERED.
/s/ William L. Witham Jr.
Resident Judge
WLW/dmh
16