TMH Medical Services, LLC v. National Union Fire Insurance Company of Pittsburg, PA

CourtDistrict Court, M.D. Florida
DecidedJuly 21, 2020
Docket6:17-cv-00920
StatusUnknown

This text of TMH Medical Services, LLC v. National Union Fire Insurance Company of Pittsburg, PA (TMH Medical Services, LLC v. National Union Fire Insurance Company of Pittsburg, PA) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
TMH Medical Services, LLC v. National Union Fire Insurance Company of Pittsburg, PA, (M.D. Fla. 2020).

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

TMH MEDICAL SERVICES, LLC,

Plaintiff,

v. Case No. 6:17-cv-920-Orl-37DCI

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURG, PA,

Defendant. _____________________________________

ORDER Before the Court is Defendant’s Motion for Determination of Amount of Attorneys’ Fees. (Doc. 209 (“Fees Motion”).) On referral, U.S. Magistrate Judge Daniel C. Irick recommends granting the Fees Motion in part. (Doc. 216 (“R&R”).) Plaintiff objected to the R&R (Doc. 217 (“Objections”)), and Defendant responded (Doc. 218). On de novo review, the Objections are overruled, the R&R is adopted, and the Fees Motion is granted in part. I. BACKGROUND This insurance coverage dispute concerns Defendant National Union Fire Insurance Company of Pittsburg, PA’s (“NUFIC”) purported failure to indemnify and defend Plaintiff TMH Medical Services, LLC (“TMH”) under one of NUFIC’s insurance policies. (See Doc. 16.) TMH sued NUFIC for breach of contract and a declaratory judgment that TMH is entitled to defense and indemnity. (Id.) NUFIC disputed these claims, and the lawsuit proceeded. (See, e.g., Doc. 39.) On April 20, 2018, NUFIC served a proposal for settlement on TMH under Florida

Statute § 768.79. (Doc. 155-1 (“Proposal for Settlement”).) The Proposal for Settlement attempted to “fully and finally resolve all damages that would otherwise be awarded in a final judgment in this action” for $250,000.00. (Id. at ¶¶ 2–3.) TMH didn’t accept the Proposal for Settlement within 30 days, so it was deemed rejected under Florida law. (Doc. 155, p. 2); Fla. R. Civ. P. 1.442(f)(1). Both parties moved for summary judgment (Docs. 121, 122), and the Court granted summary judgment for NUFIC (Doc. 151).

Judgment was entered for NUFIC (Doc. 152), and TMH appealed (Doc. 156). NUFIC moved for attorneys’ fees and costs under Florida Statute § 768.79 based on TMH’s rejection of the Proposal for Settlement. (Doc. 155.) Magistrate Judge Irick bifurcated the attorneys’ fees proceedings to determine NUFIC’s entitlement to fees first and the amount following the appeal if NUFIC prevailed (Docs. 160, 166). The Court

determined NUFIC is entitled to attorneys’ fees (Doc. 171 (“Fee Entitlement Order”)), and the U.S. Court of Appeals for the Eleventh Circuit affirmed the judgment for NUFIC. (Docs. 172, 185.) TMH moved for reconsideration of the Fee Entitlement Order (Doc. 199), which the Court denied on March 20, 2020 (Doc. 206). NUFIC then moved for $223,143.50 in attorneys’ fees incurred from April 20, 2018 to March 20, 2020. (Doc. 209.)

On referral, Magistrate Judge Irick recommends granting the Fees Motion in part, awarding only $211,720.50 in attorneys’ fees. (Doc. 216.) He recommends reducing the hourly rate for the paralegal to $100, reducing the hourly rate for the associates to $225, reducing the paralegal’s hours by 5%, and deducting $6,354.50 in fees related to travel. (See id.) TMH objected to almost every finding in the R&R. (Doc. 217.) With NUFIC’s response (Doc. 218), the matter is ripe.

II. LEGAL STANDARDS When a party objects to a magistrate judge’s findings on a dispositive matter, the district court must “make a de novo determination of those portions of the report . . . to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3).1 “Parties filing objections to a magistrate’s report and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be

considered by the district court.” Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988). The district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). The district court must consider the record and factual issues based on the record independent of the magistrate judge’s report. Jeffrey S. by Ernest S. v. State Bd. of Educ. of

State of Ga., 896 F.2d 507, 513 (11th Cir. 1990). III. ANALYSIS TMH raised seven objections to the R&R. (Doc. 217.) The Court addresses each. A. Objection 1: Relevant Time Period TMH objects to the R&R’s finding that NUFIC is entitled to fees from April 20,

1 When a motion for attorney’s fees is referred to a magistrate judge, it is treated “as if it were a dispositive pretrial matter.” See Fed. R. Civ. P. 54(d)(2)(D). As such, a district court “must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.” See Fed. R. Civ. P. 72(b); see also Hadad v. Scharfen, No. 08- 22608-CIV, 2010 WL 625297, at *1 n.1 (S.D. Fla. Feb. 17, 2010). 2018 to March 20, 2020, arguing NUFIC isn’t entitled to fees after the July 17, 2019 Fee Entitlement Order. (Doc. 217, pp. 4–5.) TMH says fees after that date pertain to litigating

the amount of fees, which aren’t recoverable under § 768.79. (Id. at 4.) It’s true fees under § 768.79 are limited to fees for litigating the case’s merits and entitlement to fees—not the amount of fees. See Steffen v. Akerman, Senterfitt & Edison, P.A., No. 8:04-CV-1693-T-24MSS, 2009 WL 1117390, at *1 (M.D. Fla. Apr. 24, 2009) (citations omitted). But the litigation over entitlement to fees didn’t stop on July 17, 2019. Magistrate Judge Irick bifurcated the fee determination, taking up entitlement to

fees first. (See Doc. 166.) After the Court determined NUFIC is entitled to fees on July 17, 2019 (see Doc. 171), the parties continued litigating the issue. TMH moved for reconsideration of the Fee Entitlement Order, moved for release of in-camera documents related to entitlement to fees, and objected to Magistrate Judge Irick’s ruling on that motion—NUFIC responded to each. (See Docs. 174, 181, 197, 199, 204, 205.) So only after

the Court denied TMH’s motion for reconsideration of the Fee Entitlement Order on March 20, 2020 was NUFIC’s entitlement to fees resolved and the amount of fees finally at issue. (See Docs. 206, 209.) Magistrate Judge Irick thus correctly concluded NUFIC is entitled to fees until March 20, 2020.2 (See Doc. 216, pp. 4–5.)

2 In response to the Fees Motion, TMH argued all fees after July 17, 2019 should be deducted because that’s when the Court determined NUFIC’s entitlement to fees. (See Doc. 215, pp. 19–20.) Now TMH contends certain time entries dated after July 17, 2019 that discuss the “fee claim,” “global settlement,” “recoverable entries,” and the production and submission of redacted and unredacted fee records “may pertain” to litigating the amount of fees and aren’t recoverable. (Doc. 217, p. 4.) Because TMH didn’t raise this argument before Magistrate Judge Irick, the Court will not consider it. See Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009) (finding that “a district court has B. Objection 2: Reasonable Hourly Rates TMH next objects to the R&R’s recommended reasonable hourly rates, contending the R&R relied on rates for insured’s counsel rather than the lower market rates for

insurance defense counsel.

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