# United States Sugar Corporation v. Commerce and Industry Insurance Company

> District Court, S.D. Florida · August 2, 2023

URL: https://www.frixlaw.com/law-library/cases/10122257

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** August 2, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10122257

## How later opinions describe it (automated extraction)

- holding that insurer “forfeited its right to defend” the insured where the insurer “wrongfully refused to defend instead of defending with a reservation of rights.”
- stating “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts”
- observing that “‘excessive, redundant or otherwise unnecessary’ hours should be excluded from the amount [of attorneys’ fees] claimed.”
- observing that district courts may consider expert witness fees as costs where the “reimbursement . . . is a substantive requirement of [state] law.”

## Opinion text

United States District Court
for the
Southern District of Florida

United States Sugar Corporation, )
Plaintiff, )
)
Civil Action No. 22-21737-Civ-Scola
v. )

)
Commerce and Industry Insurance )
Company, Defendant. )

Order on Cross-Motions for Summary Judgment
This matter is before the Court on cross-motions for summary judgment
filed by both Plaintiff United States Sugar Corporation (“US Sugar”) and
Defendant Commerce and Industry Insurance Company’s (“C&I”). US Sugar first
filed its motion for summary judgment. (Pl.’s Mot. Summ. J., ECF No. 116.) C&I
responded in opposition (Def.’s Resp., ECF No. 122), and US Sugar timely replied.
(Pl.’s Reply, ECF No. 129.) C&I then filed its motion for summary judgment.
(Def.’s Mot. Summ. J., ECF No. 134.) US Sugar responded in opposition (Pl.’s
Resp., ECF No. 140) and C&I timely replied. (Def.’s Reply, ECF No. 143.) After
careful consideration of the briefing, the record, and the relevant legal authorities,
the Court grants in part and denies in part both US Sugar’s motion for
summary judgment and C&I’s motion for summary judgment. (ECF Nos. 116,
134.)
1. Background
This matter is a coverage dispute between US Sugar and its then-general
commercial liability insurer, C&I. The dispute arose over US Sugar’s defense of a
putative class-action lawsuit relating to US Sugar’s practice of pre-harvest
sugarcane burning (the “Underlying Lawsuit”). (Compl. ¶¶ 1-11, ECF No. 1.) US
Sugar defended the Underlying Lawsuit successfully, despite C&I’s refusal to
provide a defense under the insurance policy (the “Policy”)1 that US Sugar held
with C&I at the time. (Id.) Now, US Sugar seeks to recoup the Defense Expenses it
incurred defending the Underlying Lawsuit through a breach of contract claim
based on the Policy. (Id. ¶¶ 99-103.)

1 The “Policy” is identified as Policy Number 044212320 and attached as Exhibit E to the
Complaint. (ECF No. 1-5.) C&I also submits the Policy as evidence in support of its motion for
summary judgment. (Not. Filing Summ. J. Ev., Ex. 1-A, ECF No. 51-2.) For ease of reference, the
Court will cite to the Policy as the “Policy,” and the Court will reference the page numbers
stamped by CM/ECF on the top of the Policy as found at docket entry number 51-2. Unless
otherwise defined, all capitalized terms used in this order are used as defined in the Policy.
The Court previously ruled on US Sugar’s motion for judgment on the
pleadings that US Sugar is entitled to reimbursement of its Defense Expenses,
finding that “US Sugar’s Defense Expenses incurred defending the Underlying
Lawsuit erode the Policy’s Self-Insured Retention.” (Order Granting Partial J. on
the Pleadings at 10, ECF No. 42.) That ‘Self-Insured Retention” limit, which
functions much like a typical insurance deductible, establishes that US Sugar is
responsible for the first $1,000,000 of its Defense Expenses. (Id. at 1-2, 10.)
Above that $1,000,000, C&I is responsible for reimbursing US Sugar for any
Defense Expenses relating to the Underlying Lawsuit, pursuant to the Court’s
prior decision. (Id.) The Court reserved ruling on what qualified as Defense
Expenses in this order. (Id. at 10 n.5.)
Next, C&I moved for partial summary judgment, seeking to have the Court
exclude certain categories of fees and costs from US Sugar’s Defense Expenses—
namely, expenses from either before the Underlying Lawsuit or after the filing of
the second amended complaint in the Underlying Lawsuit. (Def.’s Mot. Partial
Summ. J. at 1-3, ECF No. 53.) The Court found that “(1) US Sugar is not entitled
to reimbursement of its pre-suit expenses for “scientific and legal work” related to
its practice of pre-harvest sugarcane burning; but (2) C&I is responsible for all of
US Sugar’s Defense Expenses incurred above the $1,000,000 Self-Insured
Retention, even after the filing of the second amended complaint.” (Order
Granting in Part Def.’s Mot. Partial Summ. J. at 12, ECF No. 76.) Once again, the
Court made “no observations regarding the actual value of US Sugar’s incurred
Defense Expenses” in ruling on C&I’s motion. (Id. at 6 n.7.)
Now, both US Sugar and C&I seek a final determination of the amount of
US Sugar’s Defense Expenses. Neither party disputes the veracity of the figures
that US Sugar has submitted in support of its motion. Nor does either party
dispute that US Sugar has actually paid that amount to its attorneys and experts
in the Underlying Lawsuit. Both parties agree that US Sugar’s actual payments to
its attorneys and experts in the Underlying Lawsuit total $9,464,929.51. (Pl.’s
Stmt. Material Facts (“SOMF”) ¶ 10, ECF No. 115; Def.’s Resp. SOMF ¶ 10, ECF
No. 121.) And both parties agree that, following the Court’s entry of partial
judgment on the pleadings in favor of US Sugar on the Policy’s meaning, C&I paid
$2,072,453.32 to US Sugar as payment of its Defense Expenses. (Pl.’s SOMF
¶ 12; Def.’s Resp. SOMF ¶ 12; Def.’s SOMF ¶ 5, ECF No. 133.)
The parties’ only remaining dispute is the determination of the actual value
of US Sugar’s Defense Expenses that C&I must pay. US Sugar argues that C&I
owes the entirety of its Defense Expenses under Florida law and the Court’s prior
orders. (Pl.’s Mot. Summ. J. at 6.) C&I, on the other hand, argues that it may only
ever be held liable for US Sugar’s reasonable attorneys’ fees and costs as Defense
Expenses in the Underlying Lawsuit based on Florida law. (Def.’s Mot. Summ. J.
at 2-3.) According to C&I, it has already paid US Sugar the “reasonable” value of
its Defense Expenses, so it owes US Sugar nothing more under Florida law. (Id.)
2. Legal Standards
Under Federal Rule of Civil Procedure 56, “summary judgment is
appropriate where there ‘is no genuine issue as to any material fact’ and the
moving party is ‘entitled to a judgment as a matter of law.’” Alabama v. North
Carolina, 130 S. Ct. 2295, 2308 (2010) (quoting Fed. R. Civ. P. 56(a)). “The
moving party bears the initial burden to show the district court, by reference to
materials on file, that there are no genuine issues of material fact that should be
decided at trial . . . [o]nly when that burden has been met does the burden shift
to the non-moving party to demonstrate that there is indeed a material issue of
fact that precludes summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d
604, 608 (11th Cir. 1991). Rule 56(c) “requires the nonmoving party to go beyond
the pleadings and by her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there
is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)
(internal quotation marks omitted). Thus, the nonmoving party “may not rest
upon the mere allegations or denials of his pleadings, but . . . must set forth
specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986) (internal quotation marks omitted); see also
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1984)
(stating “[w]hen the moving party has carried its burden under Rule 56(c), its
opponent must do more than simply show that there is some metaphysical doubt
as to the material facts”).
The Court must view the evidence in the light most favorable to the
nonmoving party, and summary judgment is inappropriate where a genuine issue
material fact remains. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970).
“An issue of fact is ‘material’ if, under the applicable substantive law, it might
affect the outcome of the case.” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,
1259-60 (11th Cir.2004). “An issue of fact is ‘genuine’ if the record taken as a
whole could lead a rational trier of fact to find for the nonmoving party.” Id. at
1260. A court may not weigh conflicting evidence to resolve disputed factual
issues; if a genuine dispute is found, summary judgment must be denied. Skop v.
City of Atlanta, Ga., 485 F.3d 1130, 1140 (11th Cir. 2007).
3. Analysis
Applying Florida law, the Court ultimately determines that US Sugar is
entitled to reimbursement of its reasonable attorneys’ fees and costs as its
Defense Expenses, and US Sugar’s claimed attorneys’ fees and costs are
unreasonably high.2 Accordingly, the Court applies an across-the-board cut to US
Sugar’s requested hours, as an hour-by-hour analysis would inappropriate here
due to the particularly voluminous billing records at issue. The Court addresses
each issue in turn below.
A. US Sugar may only recover its reasonable attorneys’ fees and costs in
the Underlying Action under Florida law.
US Sugar argues that it is entitled to full reimbursement of its Defense
Expenses, no questions asked, under Florida law and the Court’s prior orders in
this matter. (Pl.’s Mot. Summ. J. at 6.) In support of its claim, US Sugar cites to
Continental Casualty Company v. City of Jacksonville, an unpublished 2008
Eleventh Circuit opinion. (Id. (citing 283 F. App’x 686, 689-90 (11th Cir. 2008)).)
C&I counters that Continental Casualty is inapposite to the circumstances
at hand because the Eleventh Circuit there “held that the insurer had not
breached its duty to defend” and because US Sugar takes that case’s reference to
“full reimbursement of the insured’s litigation costs” out of context. (Def.’s Resp.
at 9.) Instead, C&I asserts in its own motion, Florida law still requires courts to
analyze defense expenses where an insurer breaches its duty to defend to
determine whether the insured’s incurred attorneys’ fees and costs are
reasonable. (Def.’s Mot. Summ. J. at 2-3); Carrousel Concessions, Inc. v. Fla. Ins.
Guar. Ass’n, 483 So. 2d 513, 517 (Fla. 3d DCA 1986) (“If [the insured] is able to
establish that the defense supplied by [the insurer] was inadequate and that it
was reasonable for [the insured] to engage the services of its own attorneys, [the
insured] will be entitled to recover all reasonable costs and attorneys’ fees
incurred at the trial level.”); see also KB Home Orlando LLC v. Mid-Continent Cas.
Co., No. 19-1573-CIV, 2022 WL 4354845, at *1 (M.D. Fla. Sept. 20, 2022) (“Only
reasonable attorney's fees are recoverable as damages when an insurer breaches
its duty to defend.”).
Upon review of both Eleventh Circuit and Florida case law, the Court
confirms that US Sugar is only entitled to its reasonable attorneys’ fees and costs
incurred as Defense Expenses in the Underlying Lawsuit. Carrousel Concessions,
483 So. 2d at 517; KB Home Orlando, 2022 WL 4354845, at *1. As C&I observes,
Continental Casualty’s reference to “full reimbursement” would necessarily be
taken out of context—and directly contradictory to clear Florida law—to mean
that the Court would be required to award US Sugar every penny it paid in
attorneys’ fees and costs in the Underlying Action, without regard to
reasonableness. 283 F. App’x at 689-90. The Florida case on which Continental
Casualty relied for its “full reimbursement” language dealt with a case where the

2 The Court is bound by Florida law in this diversity action. See, e.g., Silverberg v. Paine, Webber,
Jackson & Curtis, Inc., 710 F.2d 678, 690 (11th Cir. 1983).
insurer sought to reassert its right to control the insured’s defense, not with an
award of fees and costs. BellSouth Telecommunications, Inc. v. Church & Tower of
Fla., Inc., 930 So. 2d 668, 672 (Fla. 3d DCA 2006). In fact, in BellSouth, the Third
District Court of Appeal affirmatively cited to Carrousel Concessions and further
confirmed that any award of fees and costs for breach of the duty to defend must
be reasonable:

In Carrousel Concessions . . . we reversed the summary judgment, finding
that, if [the insured] established that the defense supplied by [the insurer]
was inadequate and that it was reasonable for [the insured] to engage its
own attorneys, [the insured] would be entitled to recover all reasonable
costs and attorneys’ fees incurred at the trial level, as well as its appellate
expenses.

Id. In other words, Florida courts use the terms “full reimbursement” and
“reasonable” interchangeably with reference to an award of attorneys’ fees and
costs to an insured as damages for breach of the insurer’s duty to defend. Id.
Based on clear Florida law, then, the Court may only award US Sugar its
reasonable attorneys’ fees and costs (less the $1,000,000 Self-Insured Retention
and the $2,072,453.32 that C&I has already reimbursed US Sugar for) as its
damages in this matter.3 Therefore, the Court now turns to an analysis of US
Sugar’s claimed fees and costs for reasonableness.
B. The Court, as an expert on fees, may determine what percentage of US
Sugar’s claimed fees and costs are reasonable as a matter of law.
The Court may properly apply its expertise to determine the reasonableness
of US Sugar’s requested attorneys’ fees and costs in this matter, and it need not
rely on the testimony of other experts to do so. Laney v. BBB Logistics, Inc., 844 F.
App’x 203, 210 (11th Cir. 2021) (“It is long settled in this circuit that when a
court is determining the reasonableness of attorneys’ fees, the court, as a matter
of law, is itself an ‘expert on the question and may consider its own knowledge
and experience concerning reasonable and proper fees and may form an
independent judgment either with or without the aid of witnesses.’”) (quoting

3 As C&I observes, nothing in the Court’s prior orders requires the Court to award US Sugar the
full amount of its claimed damages without a review for reasonableness. (Def.’s Resp. at 5-7.)
First, the Court expressly stated in both prior orders in this matter that it was making no findings
with regard to the value of US Sugar’s claimed Defense Expenses. (Order Granting Partial J. on
the Pleadings at 10 n.5; Order Granting in Part Def.’s Mot. Partial Summ. J. at 6 n.7.) Second,
even if the Court had somehow stated US Sugar was entitled to an uncritical affirmation of its
Defense Expenses, the Court could not continue to hold to that position in light of the case law
addressed in this order.
Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988)).
Because the award of “all reasonable costs and attorneys’ fees” as damages for
breach of the duty to defend is a substantive provision of Florida law, the Court
may consider US Sugar’s expert witness fees here, although it would normally be
limited by 18 U.S.C. § 1821 in assessing expect witness costs on an attorneys’
fees award. BellSouth, 930 So. 2d at 672; see also Kivi v. Nationwide Mut. Ins. Co.,
695 F.2d 1285, 1289 (11th Cir. 1983) (observing that district courts may consider
expert witness fees as costs where the “reimbursement . . . is a substantive
requirement of [state] law.”).
C. The Court finds US Sugar’s reasonable fees and costs in the Underlying
Action to be $6,529,005.82.
C&I seeks an across-the-board reduction of US Sugar’s fees, arguing that
some of US Sugar’s attorneys’ rates were unreasonably high, that there was
significant duplication of effort by the multiple law firms that US Sugar engaged,
that US Sugar paid for the attorneys’ fees of uninsured co-defendants in the
Underlying Lawsuit, and that US Sugar’s expert witness costs were “not
necessary to defend the Underlying Lawsuit.” (Def.’s Mot. Summ. J. at 6-20.) US
Sugar (aside from arguing that it should be awarded the full value of the
attorneys’ fees and costs it actually incurred) responds that this is an excessive,
unnecessary reduction of attorneys’ and experts’ work that was actually
necessary to resolve the Underlying Lawsuit and for which US Sugar actually
paid. (Pl.’s Resp. at 15-20.)
(1) The breakdown of US Sugar’s claimed $9,464,929.51 in attorneys’
fees and costs.
The Court observes at the beginning that US Sugar’s full incurred costs of
$9,464,929.51 are not reasonable. The Court will address why with respect to
each law firm and the amount of work it performed in greater detail below. First,
however, the Court will review what attorneys’ fees and costs US Sugar is
claiming for its defense of the Underlying Lawsuit.
Through its General Counsel, US Sugar submits a breakdown of the
attorneys’ fees and costs it paid to six separate law firms and to its expert
witnesses as third-party vendors. (L. Kurtz Decl. ¶¶ 14-15, Exs. A, B, ECF No.
114-1.) The bills of those six law firms—Gunster, Mayer Brown, Holland &
Knight, Litchfield Cavo, Haliczer Pettis & Schwamm (“Haliczer”), and Clare
Locke—comprise $5,655,698.22 of US Sugar’s claimed expenses. (Id. ¶ 14, Ex. A.)
The bills of US Sugar’s third-party experts—consisting of nine different vendors—
comprise $3,809,231.29 of its claimed expenses. (Id. ¶ 15, Ex. B.)
US Sugar submits $2,770,758.60 in attorneys’ fees billed by Gunster from
June 2019 through February 2022. (Id. ¶ 14, Ex. A.) Gunster acted both as local
counsel in the Underlying Lawsuit and also generally handled “factual discovery
and investigation.” (Pl.’s Mot. Summ. J. at 9.) C&I takes issues with Gunster’s
bills as being largely redundant with Mayer Brown, arguing that “either Gunster
or Mayer Brown could have handled this matter [the Underlying Lawsuit] on its
own.” (Def.’s Mot. Summ. J. at 10-12.) C&I points to several Gunster attorneys
who billed over 1,000 on the Underlying Lawsuit and the fact that Gunster was
supposed to be “local counsel” but clearly ended up working as the “lead” firm on
the case as reasons why Gunster’s bills are not reasonable. (Id.; Def.’s SOMF Ex.
J, ECF No. 138-9 (sealed).)
US Sugar also submits $2,794,555.07 in attorneys’ fees billed by Mayer
Brown from June 2019 through February 2022. (L. Kurtz Decl. ¶ 14, Ex. A.)
Mayer Brown primarily handled the drafting of legal arguments and
communicating with the plaintiffs’ counsel in the Underlying Lawsuit. (Pl.’s Mot.
Summ. J. at 9.) C&I raises more arguments against Mayer Brown’s bills. First,
C&I asserts that Mayer Brown’s hourly rates are unreasonable in the Southern
District of Florida. (Def.’s Mot. Summ. J. at 8-10.) Specifically, C&I directs the
Court’s attention to the rates of three Mayer Brown attorneys: $1,058 per hour,
$995 per hour, and $932 per hour, respectively. (Id. at 8.) Second, C&I makes the
same arguments regarding redundant or duplicative work by both Gunster and
Mayer Brown, arguing that both firms performed an excessive amount of work
that overlapped on drafting the motions to dismiss in the case, among other
issues. (Id. at 10-12.)
US Sugar additionally submits $90,384.55 in attorneys’ fees billed by
Holland & Knight, Litchfield Cavo, Haliczer, and Clare Locke during the
Underlying Lawsuit.4 Holland & Knight “provided advice on public records
requests” and responded to “requests made by universities in connection with the
Underlying Lawsuit.” (Pl.’s Mot. Summ. J. at 10.) Litchfield Cavo assisted with
“day-to-day litigation matters” and reviewed “joint defense issues” and motion
drafts. (Id. at 9-10.) Haliczer worked on “public strategy” and reviewed motion
drafts. (Id. at 9.) Clare Locke evaluated allegations in the Underlying Lawsuit and
worked on “discovery responses, settlement discussions, and document
production.” (Id. at 10.) C&I objects to paying any of these firms’ fees on several
grounds. First, C&I argues that all of the work performed by these firms is
duplicative of the work performed by Gunster and Mayer Brown. (Def.’s Mot.

4 Holland & Knight billed $3,263.75 in July 2021, Litchfield Cavo billed $30,250.20 from October
2019 through February 2022, Haliczer billed $51,744.35 from June 2019 through February 2022,
and Clare Locke billed $4,856.25 from September through December 2021. (L. Kurtz Decl. ¶ 14,
Ex. A.)
Summ. J. at 12.) Second, C&I argues that much of these firms’ work was
unnecessary to US Sugar’s successful defense of the Underlying Lawsuit. (Id.)
Third, C&I argues that Litchfield Cavo’s fees were incurred on behalf of an
uninsured codefendant in the Underlying Lawsuit, so those fees are not
reimbursable as Defense Expenses. (Id. at 13.)
Finally, US Sugar submits $2,945,262.99 in expert witness costs from nine
separate vendors engaged between June 2019 and February 2022.5 (L. Kurtz
Decl. ¶ 15, Ex. B.) These experts reviewed the factual basis for the plaintiffs’
allegations in the Underlying Lawsuit, investigated potential damages to the
plaintiffs, and collected and analyzed data relevant to the claims in the
Underlying Lawsuit in preparation for a potential trial. (Pl.’s Mot. Summ. J. at 10-
12.) C&I objects to paying any portion of the expert witness costs, asserting that
the experts “were not necessary or directly related to the defense of the
[U]nderlying [L]awsuit.” (Def.’s Mot. Summ. J. at 17.) C&I’s objections are based
on two primary arguments. First, because the plaintiffs dismissed the Underlying
Lawsuit after being shown “air monitoring data that was collected and analyzed
before the Underlying Lawsuit incepted,” C&I argues that no expert analysis of
air monitoring data or other data was necessary after the Underlying Lawsuit was
filed. (Id. at 18.) Second, because the Underlying Lawsuit did not extend beyond
the motion-to-dismiss stage, C&I argues that no expert witnesses were
“necessary”—rather, all of the legal work on the Underlying Lawsuit related purely
to legal arguments on motions to dismiss. (Id. at 18-19.)
Based on its objections, C&I contends that an across-the-board reduction
of US Sugar’s submitted attorneys’ fees by 50%, and a complete denial of the
expert witness costs, is appropriate. (Def.’s Mot. Summ. J. at 14-15.) While the
Court agrees that US Sugar’s total attorneys’ fees and costs incurred in defending
the Underlying Lawsuit were unreasonably high, C&I asks for too steep a
reduction given the circumstances.
(2) US Sugar’s sought attorneys’ fees and costs must be reduced by an
across-the-board cut of the submitted bills.
Now, the Court will review each category of attorneys’ fees and costs
individually to approach how best to apply an across-the-board cut. Bivins v.
Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008) (“When a district court
finds the number of hours claimed is unreasonably high, the court has two
choices: it may conduct an hour-by-hour analysis or it may reduce the requested

5 Although the billing summaries that US Sugar submits for its third-party vendors total
$3,809,231.29, US Sugar affirmatively states that it has been reimbursed for $863,968.30 of
those invoices and is not seeking double reimbursement here, so the Court considers only the
amount of third-party invoices for which US Sugar has not been reimbursed separately. (L. Kurtz
Decl. ¶ 17.)
hours with an across-the-board cut.”).6 “In determining what is a “reasonable”
hourly rate and what number of compensable hours is “reasonable,” the court is
to consider the 12 factors enumerated in Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714 (5th Cir. 1974).” Id. Those twelve factors are the following:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3)
the skill requisite to perform the legal service properly; (4) the preclusion of other
employment by the attorney due to acceptance of the case; (5) the customary fee;
(6) whether the fee is fixed or contingent; (7) the time limitations imposed by the
client or the circumstances; (8) the amount involved and the results obtained;
(9) the experience, reputation, and ability of the attorneys; (10) the undesirability
of the case; (11) the nature and length of the professional relationship with the
client; and (12) awards in similar cases. Johnson v, 488 F.2d at 717-19 (5th Cir.
1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989).
While these factors have been expressly established for the determination of
attorneys’ fees and costs awards using the lodestar method to award fees and
costs to a prevailing party, they are largely applicable here, and the Court will
approach its reasonableness analysis with these factors in mind.7
The Court finds that the factors, considered as a whole, support a
reduction in US Sugar’s claimed attorneys’ fees and costs, but not the greater
than 50% reduction that C&I seeks. The time and labor required to handle the
Underlying Lawsuit was, despite C&I’s assertions to the contrary, quite high.
Although the Underlying Lawsuit never proceeded beyond the motion to dismiss
stage, it carried on for over two-and-a-half years. The Underlying Lawsuit involved
multiple amended complaints and motions to dismiss. While the questions
involved were not novel, they did involve a level of difficulty greater than a
standard negligence or strict liability lawsuit, as the Underlying Lawsuit alleged
extensive environmental harm and personal injuries purportedly related to US
Sugar’s pre-harvest sugarcane burning. Because the case involved a specialty
area of the law (environmental law), an above-average level of skill was necessary
to handle the Underlying Lawsuit. While attorneys working on the Underlying
Lawsuit would not have been precluded from accepting any other case work, its

6 The Court clarifies that it is not conducting an hour-by-hour review. US Sugar’s defense of the
Underlying Lawsuit involved over seventy timekeepers who billed over 9,000 hours. If there is ever
an instance where an hour-by-hour review would “impractical,” it is in a case such as this one.
But, because of the piecemeal nature by which C&I objects to US Sugar’s expenses, the Court will
also address the reasonableness of US Sugar’s claimed fees in a similar manner. Therefore, the
Court will review reasonableness based on each law firm’s submitted billing, and then will
separately handle the expert witness costs.

7 The Court observes, however, that factors 5, 6, 7, 11, and 12 do not appear to have any
particular applicability in this case, where the fees were incurred on an hourly rate, and neither
party raises issues relating to time limitations, professional relationships extending beyond the
bounds of the Underlying Lawsuit, or similar awards or outcomes in other cases.
complex nature would doubtlessly have limited their availability to engage in
other work. The amount of money potentially involved, and the results that US
Sugar’s counsel obtained, undoubtedly weigh in US Sugar’s favor. This was a bet-
the-company litigation, and US Sugar prevailed. The nature of the case similarly
would have demanded experienced and well-regarded attorneys with some level of
expertise in environmental issues.
Nevertheless, a proper consideration of these factors also demonstrates that
US Sugar’s incurred attorneys’ fees and costs were not wholly reasonable. First,
Gunster and Mayer Brown clearly engaged in duplicative work, with both firms
taking overlapping roles on the review and investigation of the pleadings and on
legal briefing relating to the pleadings. (Def.’s Mot. Summ. J. at 11; Def.’s SOMF
Ex. J; Pl.’s Mot. Summ. J. at 9; L. Kurtz Decl. ¶ 14, Ex. A.) A reduction of both
Gunster’s and Mayer Brown’s fees for duplicative work is therefore appropriate.
Norman, 836 F.2d at 1301 (observing that “‘excessive, redundant or otherwise
unnecessary’ hours should be excluded from the amount [of attorneys’ fees]
claimed.”). Therefore, the Court will apply an across-the-board cut of 20% to
Gunster’s fees and an across-the-board cut of 30% to Mayer Brown’s fees.
Norman, 836 F.2d at 1301; Golf Clubs Away, 2012 WL 2912709, at *4. Those
reductions result in a reasonable fee of $2,216,606.88 for Gunster’s work and
$1,956,188.55 for Mayer Brown’s work.
The Court does not find it appropriate, however, to reduce the rates
charged by Mayer Brown’s senior attorneys. First, this is not a contingency fee
case where US Sugar’s attorney must come up with a reasonable rate after the
fact upon an award of fees—US Sugar (and, presumably, other clients) actually
paid the fees that Mayer Brown’s attorneys charged. Second, the South Florida
legal market has changed drastically in the last several years. Miami in particular
has developed into a national legal market. That top-end firms will be able to
charge national hourly rates in South Florida, now, is an inevitable consequence
of that development. The Court therefore will not consider a rate reduction for the
three Mayer Brown attorneys.
Next, the Court finds that the work performed by the supporting law
firms—Holland & Knight, Litchfield Cavo, Haliczer, and Clare Locke—to be either
unnecessary or wholly duplicative of Gunster’s and Mayer Brown’s work on the
Underlying Lawsuit. Holland & Knight’s work on public records requests and
responses to university inquiries relating to the suit was not necessary for US
Sugar to defend itself in the Underlying Lawsuit. Norman, 836 F.2d at 1301
(noting that “excessive or otherwise unnecessary hours under the rubric of ‘billing
judgment’ means that a lawyer may not be compensated for hours spent on
activities for which he would not bill a client of means who was seriously intent
on vindicating similar rights, recognizing that in the private sector the
economically rational person engages in some cost benefit analysis.”). Litchfield
Cavo’s assistance with routine matters and reviewing of motion drafts was wholly
duplicative of other firms’ work. Id. Its work was also not recoverable as it was
performed on behalf of an uninsured co-defendant, which US Sugar has not
contested. Haliczer’s work on public relations strategies was also wholly
unnecessary to the defense of the Underlying Lawsuit. Id. And Clare Locke’s work
on document production and factual investigation was wholly duplicative of
Gunster’s work. Id. The Court therefore finds the entirety of the $90,384.55 those
firms billed to be unreasonable.
Finally, the Court cannot agree with C&I that all of US Sugar’s expert
witness fees are unrecoverable. C&I’s positions—that US Sugar did not need to
continue to analyze air monitoring and other data after the initiation of the
lawsuit because pre-suit data ultimately convinced the plaintiffs to dismiss the
case, and that US Sugar did not need expert involvement because the case never
reached the discovery stage—are untenable. As an initial matter, C&I gave up its
right to control US Sugar’s defense as a matter of law when it refused to defend
US Sugar under the Policy. BellSouth, 930 So. 2d at 672 (holding that insurer
“forfeited its right to defend” the insured where the insurer “wrongfully refused to
defend instead of defending with a reservation of rights.”). US Sugar was faced
with an existential threat in the Underlying Lawsuit, which was a true “bet-the-
company” litigation if there ever was one. To assert that US Sugar should have
avoided engaging expert witnesses simply because the case never truly entered
the discovery stage (even though it ground on for two-and-a-half years) is absurd.
US Sugar undoubtedly needed to prepare for the distinct possibility that the case
would enter a fulsome discovery phase. And C&I’s insistence that US Sugar did
not need to continue to supplement its air monitoring data (and other data)
because the plaintiffs were persuaded to dismiss by the pre-suit data is similarly
absurd. US Sugar would undoubtedly have been required to provide post-suit
data in discovery. Such data could easily have changed the trajectory of the
case—for better or worse. While US Sugar clearly hoped that providing the pre-
suit data would have the effect it ultimately did, it had no way of knowing that at
the time. Rather, US Sugar had to prepare to continue to litigate the Underlying
Lawsuit for the duration. Therefore, the Court cannot agree that a total denial of
expert witness costs is appropriate here.
Nevertheless, the Court does not find a total award of the experts’ incurred
costs to be reasonable, either. US Sugar does not provide detailed arguments
surrounding the appropriateness of the individual experts’ bills. (Pl.’s Mot. Summ.
J. at 10-12.) US Sugar does provide a summary of the general tasks each expert
vendor was engaged to perform, supported by its General Counsel’s declaration.
(Pl.’s Mot. Summ. J. at 10-12, L. Kurtz Decl. ¶ 15, Ex. B.) C&I, however, does
present (under seal) examples of experts’ billing records that are unrelated to the
Underlying Lawsuit or unnecessary to the successful resolution of the Underlying
Lawsuit—namely, work done for public relations rather than for the Underlying
Lawsuit. (Def.’s Resp. at 14-16, ECF No. 136 (sealed).) From the Court’s review of
those records, it appears that some of the experts’ incurred costs were not
necessary and that the experts also had some overlap in their responsibilities.
Therefore, the Court finds that a 20% across-the-board cut to the experts’ costs is
appropriate here. Kivi, 695 F.2d at 1289. This results in reasonable expert
witness costs of $2,356,210.39.
Taking all of the reductions together, the Court finds US Sugar’s reasonable
attorneys’ fees and costs to be $6,529,005.82. This results in roughly a 24%
overall reduction of US Sugar’s requested attorneys’ fees and costs (which was
$9,464,929.51). Once the Court takes into account the $1,000,000 Self-Insured
Retention in US Sugar’s Policy and C&I’s prior payment of $2,072,453.32, the
Court finds that C&I still owes US Sugar $3,456,552.50 in Defense Expenses
from the Underlying Lawsuit. Therefore, the Court grants in part and denies in
part both parties’ motions for summary judgment, finds US Sugar’s reasonable,
reimbursable Defense Expenses in the Underlying Lawsuit to have been
$6,529,005.82, and finds that C&I owes US Sugar a balance of $3,456,552.50 in
damages.
4. Conclusion
For the reasons stated above, the Court grants in part and denies in part
both US Sugar’s motion for summary judgment (ECF No. 116) and C&I’s motion
for summary judgment (ECF No. 134) and finds the following as a matter of law:
(1) US Sugar is entitled to reimbursement of its reasonable attorneys’ fees and
costs as its Defense Expenses in the Underlying Action in excess of the Self-
Insured Retention amount; (2) US Sugar is therefore entitled to $6,529,005.82 in
Defense Expenses from the Underlying Action; (3) because C&I has already
reimbursed $2,072,453.32 of US Sugar’s Defense Expenses and US Sugar’s
Defense Expenses are subject to the Policy’s $1,000,000 Self-Insured Retention,
US Sugar is entitled to judgment in the amount of $3,456,552.50; and (4) US
Sugar may raise its reserved requests for pre- and post-judgment interest and its
reasonable attorneys’ fees and costs in this action by separate motion. US Sugar
is directed to submit such a motion, should it desire to do so, no later than
August 18, 2023. The Court will separately enter judgment, as required by
Federal Rule of Civil Procedure 58, after resolution of US Sugar’s motion for pre-
and post-judgment interest and attorneys’ fees and costs.
The status conference scheduled for August 9, 2023, at 9:00 A.M., is
canceled. All currently pending motions are denied as moot. This matter shall
remain open pending the potential resolution of a motion by US Sugar for pre-
and post-judgment interest and its reasonable attorneys’ fees and costs in this
action.
Done and ordered in Miami, Florida, on August 2, 2023.

Robert N. Scola, Jr.
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10122257. Public record. Not legal advice.