Owens v. State Farm Fire And Casualty Company

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PENDLETON DIVISION

CASSIE OWENS and JOHNNY OWENS, Case No. 2:22-cv-00119-HL

Plaintiff,

v. OPINION AND ORDER

STATE FARM FIRE AND CASUALTY

COMPANY,

Defendant.

___________________________________

HALLMAN, United States Magistrate Judge:

Plaintiffs Cassie and Johnny Owens (“Owens”) seek attorney’s fees against Defendant

State Farm Fire and Casualty Company (“State Farm”) stemming from an insurance coverage

dispute. Pl. Memo. in Supp. of Pl. Mot. Att. Fees and Costs (“Pl. Mot.”), ECF 25.1 For the

1 The caption of the Owens’ motion indicates that they are moving for both fees and costs;

however, no cost bill was submitted and, as a result, this Court has no basis to award costs.

following reasons, the Court GRANTS the Owens’ motion in part and awards $142,612.50 in

attorney’s fees.

BACKGROUND

The Owen’s home caught fire on April 5, 2021, damaging the attic and personal property

and causing later water damage. Trent Decl. 2, ECF 36-10; Owns Decl. ¶ 4, ECF 47. The Owens

called their insurer, State Farm, that day to report the fire damage. Trent Decl. 2. State Farm

examined the home two days later and sent the Owens a letter explaining the available policy

benefits. Trent Decl. 2.

The parties’ dispute centers around when the Owens effectively submitted proof of loss

after their house caught fire. The Owens claimed that State Farm failed to pay $275,000 in

structural benefits, $220,000 in personal property benefits, and $50,000 in temporary living

benefits. Compl., ECF1-1. The Owens contend that they submitted proof of loss when they

contacted State Farm, letting it know the house had caught fire. Pl.’s Mot. 4. State Farm disputes

the Owens’ proof of loss for Coverage A (structural), B (personal property), and ALE (cost of

living) benefits. State Farm argues the Owens did not submit Proof of loss for personal property

benefits until they submitted their Coverage B inventory because State Farm had no other way of

effectively estimating what personal property the Owens had lost. Def.’s Resp. 12–13. State

Farm also argues the Owens did not submit proof of loss for Coverage A code upgrades until the

contractor submitted its estimate for the cost of requested code upgrades. Id. Finally, State Farm

argues they paid all ALE benefits within six months of receiving receipts for those costs from the

Owens. Id. at 13–14.

The Owens filed suit in Baker County Circuit Court on January 7, 2022, alleging one

count of breach of contract. Compl., ECF 1. State Farm removed the action to this Court shortly

thereafter. ECF 1. On April 4, 2022, the Owens filed an Amended Complaint that included a tort

claim for State Farm’s alleged breach of the covenant of good faith and fair dealing. First Am.

Compl., ECF 16.

On August 9, 2022, following a Judicial Settlement Conference with Magistrate Judge

Youlee You, State Farm agreed to provide an insurance recovery in the amount of $435,000 to

the Owens. Pl. Mot. 3. The parties agreed to separately negotiate attorney’s fees. Id. Judgment

was entered in this matter on November 8, 2022. ECF 32. The parties were unable to resolve the

attorney fee issue, and this motion followed.

DISCUSSION

I. Entitlement to Attorney’s Fees

State Farm asserts that the Owens are not entitled to attorney’s fees because they did not

demonstrate sufficient proof of loss, as required by ORS 742.061. They also assert that they are

not entitled to attorney’s fees spent litigating their tort claim.

A. Legal Standards

Oregon law governs whether attorney fees are available in this case because this is a state

law insurance dispute. Northon v. Rule, 637 F.3d 937, 938 (9th Cir. 2011) (“State laws awarding

attorneys’ fees are generally considered to be substantive laws under the Erie doctrine. . . .”). The

parties do not dispute that Oregon law controls this issue.

The Owens move for fees under ORS 742.061, which provides, in relevant part:

[Subject to exceptions that do not apply here], if settlement is not made within six

months from the date proof of loss is filed with an insurer and an action is brought

in any court of this state upon any policy of insurance of any kind or nature, and

the plaintiff’s recovery exceeds the amount of any tender made by the defendant

in such action, a reasonable amount to be fixed by the court as attorney fees shall

be taxed as part of the costs of the action and any appeal thereon.

ORS § 742.061(1). In other words, a plaintiff-insured seeking fees must satisfy four conditions:

‘(1) [the insured] must have filed a proof of loss with its insurer; (2) settlement

must not have occurred within six months of filing of that proof of loss; (3) [the

insured] must have brought a court action upon the policy; and (4) [the insured]

must have ultimately recovered more than the amount of any tender made by [the

insurer] in the action.’

Strugari v. Sagamore Ins. Co., No. 3:20-CV-00956-SB, 2023 WL 3002442, at *2 (D. Or. Apr.

19, 2023) (quoting Ash Grove Cement Co. v. Liberty Mut. Ins. Co., No. 3:09-cv-00239-HZ, 2014

WL 837389, at *1 (D. Or. Mar. 3, 2014).

B. Proof of Loss

State Farm challenges the Owens’ entitlement to attorney’s fees based on the first factor,

proof of loss for Coverage A (structural), Coverage B (personal property), or ALE benefits.

Proof of loss has a functional and fact-specific definition. Parks v. Farmers Ins. Co., 347 Or.

374, 380-81 (2009). “Any event or submission that would permit an insurer to estimate its

obligations [after reasonable investigation] is effective ‘proof of loss.’” Id. Thus, if the plaintiff

provided enough information that the insurer could estimate its obligations through a reasonable

investigation, the plaintiff has provided sufficient proof of loss. Id.

The Court agrees with State Farm that the Owens had not submitted sufficient proof of

loss for damaged personal property until they submitted the Coverage B inventory. This issue

was previously decided in State Farm Fire & Cas. Co. v. Jensen, 604 F. Supp. 3d 1096, 1112–13

(D. Or. 2022). In that case, as here, the home had caught fire and personal property was damaged

in the process. The court explained that only after the plaintiff submitted the personal property

inventory did he provide adequate proof of loss because the insurer had no other way of

accurately estimating the damage to the plaintiff’s personal property. Knowledge of the personal

property that was originally in the house and damaged by the fire was in the sole possession of

the plaintiff. Thus, the insurer could not adequately estimate its obligations until the plaintiff

submitted the Coverage B inventory and told the insurer what personal property was damaged.

Id.

This case is the same. State Farm again has no way of knowing all the personal property

that was originally in the home and damaged by the fire without the Owens Coverage B

inventory or a similar disclosure. Even if the Owens’ Complaint in this action could have

fulfilled those requirements, the Complaint only stated, “Coverage B – Personal Property:

Defendant has issued payment in the approximate amount of $33,000 and is liable for an

additional $225,000.” This unsupported and nonspecific allegation is insufficient for State Farm

to reasonably estimate its liability. Thus, the Owens had not submitted sufficient proof of loss

until it submitted the inventory. State Farm paid the full amount of these claims within six

months after the Owens submitted this inventory. The Owens are not entitled to attorney’s fees

for recovery of the Coverage B damages.

In contrast, State Farm could have accurately estimated its Coverage A obligations,

including costs associated with bringing the repairs up to code. State Farm argues it was unable

to make these estimates without the contractors bid of work. Def.’s Resp. 13. But State Farm

failed to explain why it could not create its own independent estimate, including additional costs

related to bringing the repairs up to code. State Farm does not dispute that it made an initial

estimate and paid more than this estimate for Coverage A benefits after the six-month period.

Because State Farm did not need information only the Owens could provide to make these

estimates, the Owens’ original notice of the fire was sufficient proof of loss. Thus, the Owens are

entitled to attorney’s fees for their recovery of additional Coverage A benefits.

Similarly, State Farm failed to pay all ALE benefits within six months. State Farm asserts

that they paid all ALE benefits within six months of the Owens submitting receipts for coverage.

Def.’s Resp. 13-14, ECF 36; Trent Decl. 5 (stating State Farm had timely paid all benefits,

including Coverage B and ALE it had documentation to support). However, the Owens assert

that one round of receipts was not paid within six months and was part of the settlement award.

Pl.’s Reply 23; Owns Decl. ¶ 9 (stating State Farm failed to pay ALE coverage for receipts

submitted in December 2021). Because State Farm did not move to rebut this evidence, the Court

will award this time to the Owens based on this unrebutted additional evidence.

C. Tort Claim

This Court agrees with State Farm that the time spent litigating the tort claim is not

recoverable. Def. Resp. 14-15. When a “plaintiff’s claim [is a] tort, [it] is not an action on an

insurance policy. Therefore, [the] plaintiff is not entitled to an award of attorney fees under ORS

742.061.” Goddard v. Farmers Ins. Co. of Oregon, 177 Or. App. 621, 623 (2001) (cited by

Wiltshire v. Farmers Ins. Co. of Oregon, 312 Or. App. 449, 450, review denied, 368 Or. 703

(2021) for the same proposition). As a result, the Owens are not entitled to attorney’s fees on

time spent litigating their tort action.

II. Amount of Fees

A. Applicable Law

ORS § 20.075 provides that “[a] court shall consider the factors specified in subsection

(1) of this section in determining the amount of an award of attorney fees in any case in which an

award of attorney fees is authorized or required by statute.” Or. Rev. Stat. § 20.075(2). Those

eight factors are:

(a) The conduct of the parties in the transactions or occurrences that gave rise to

the litigation, including any conduct of a party that was reckless, willful,

malicious, in bad faith or illegal.

(b) The objective reasonableness of the claims and defenses asserted by the

parties.

(c) The extent to which an award of an attorney fee in the case would deter others

from asserting good faith claims or defenses in similar cases.

(d) The extent to which an award of an attorney fee in the case would deter others

from asserting meritless claims and defenses.

(e) The objective reasonableness of the parties and the diligence of the parties and

their attorneys during the proceedings.

(f) The objective reasonableness of the parties and the diligence of the parties in

pursuing settlement of the dispute.

(g) The amount that the court has awarded as a prevailing party fee under ORS

20.190.

(h) Such other factors as the court may consider appropriate under the

circumstances of the case.

Id. § 20.075(1).

Section 20.075 provides that in addition to the eight factors under subsection (1), a “court

shall [also] consider the [eight] factors [in subsection (2) of this section] in determining the

amount of an award of attorney fees in those cases” in which an award of attorney fees is

authorized or required by statute. Id. § 20.075(2); Foraker v. USAA Cas. Ins. Co., No. 3:14-cv-

00087-SI, 2018 WL 3873575, at *1 n.1 (D. Or. Aug. 15, 2018). Those eight subsection (2)

factors are:

(a) The time and labor required in the proceeding, the novelty and difficulty of the

questions involved in the proceeding and the skill needed to properly perform the

legal services.

(b) The likelihood, if apparent to the client, that the acceptance of the particular

employment by the attorney would preclude the attorney from taking other cases.

(c) The fee customarily charged in the locality for similar legal services.

(d) The amount involved in the controversy and the results obtained.

(e) The time limitations imposed by the client or the circumstances of the case.

(f) The nature and length of the attorney’s professional relationship with the

client.

(g) The experience, reputation and ability of the attorney performing the services.

(h) Whether the fee of the attorney is fixed or contingent.

(i) Whether the attorney performed the services on a pro bono basis or the award

of attorney fees otherwise promotes access to justice.

Or. Rev. Stat. § 20.075(2).

When analyzing the factors under § 20.075, “a court should ‘includ[e] in its order a brief

description or citation to the factor or factors on which it relies.’” Foraker, 2018 WL 3873575, at

*2 (quoting McCarthy v. Oregon Freeze Dry, Inc., 327 Or. 84, 96 (1998)). A court, however,

typically has “no obligation to make findings on other statutory criteria that play no role in the

court’s decision.” McCarthy, 327 Or. at 96.

“Under ORS § 20.075(2), factor (a) generally relates to the reasonableness of the number

of hours expended by counsel for the prevailing party, factors (c) and (g) generally relate to the

reasonableness of the hourly rates charged, and factor (d) generally informs whether an upward

or downward adjustment might be appropriate.” Foraker v. USAA Cas. Ins. Co., No. 3:14-CV-

87-SI, 2018 WL 3873575, at *2 (D. Or. Aug. 15, 2018). Taken together, these factors are

comparable to what is often referred to as the “lodestar” method for calculating a reasonable

attorney’s fee. See Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010) (holding that the

lodestar method yields a presumptively reasonable fee, subject to upward or downward

adjustment as appropriate); see also Strawn v. Farmers Ins. Co. of Or., 353 Or. 210, 221 (2013)

(“The lodestar approach that the parties have used is at least a permissible one under the statutes

involved,” including Or. Rev. Stat. § 20.075); ZRZ Realty Co. v. Beneficial Fire & Cas. Ins. Co.,

255 Or. App. 525, 554 (2013) (“The lodestar method that the trial court used is a commonly

applied and permissible approach for determining the reasonableness of a fee award . . . .”).

The lodestar amount is the product of the number of hours reasonably spent on the

litigation multiplied by a reasonable hourly rate. McCown v. City of Fontana, 565 F.3d 1097,

1102 (9th Cir. 2009). In making this calculation, the district court should consider various factors

of reasonableness, including the quality of an attorney’s performance, the results obtained, the

novelty and complexity of a case, and the special skill and experience of counsel. See Perdue,

559 U.S. at 553-54; Gonzalez v. City of Maywood, 729 F.3d 1196, 1209 n.11 (9th Cir. 2013).

In determining the number of hours reasonably spent, “the district court should exclude

hours ‘that are excessive, redundant, or otherwise unnecessary.’” McCown, 565 F.3d at 1102

(quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). The party seeking an award of

attorney’s fees “has the burden of submitting billing records to establish that the number of hours

it has requested [is] reasonable.” Gonzalez, 729 F.3d at 1202.

After determining the number of hours reasonably spent, the district court calculates the

reasonable hourly rates for the attorneys and paralegals whose work comprises the reasonable

number of hours. This calculation yields the lodestar amount. For this purpose, the “‘prevailing

market rates in the relevant community’ set the reasonable hourly rates.” Gonzalez, 729 F.3d at

1205 (quoting Dang v. Cross, 422 F.3d 800, 813 (9th Cir. 2005)). “Generally, when determining

a reasonable hourly rate, the relevant community is the forum in which the district court sits.” Id.

(quoting Prison Legal News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010)). Within this

geographic community, the district court should consider the attorneys’ or paralegals’

experience, skill, and reputation. Id.

In determining reasonable hourly rates, typically “[a]ffidavits of the plaintiffs’ attorney

and other attorneys regarding prevailing fees in the community, and rate determinations in other

cases, particularly those setting a rate for the plaintiffs’ attorney, are satisfactory evidence of the

prevailing market rate.” United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407

(9th Cir. 1990). In addition, courts in the District of Oregon have the benefit of several billing

rate surveys. One useful survey is the Oregon State Bar 2022 Economic Survey (“OSB 2022

Survey”), which contains data on attorney billing rates based on the type of practice, geographic

area of practice, and years of practice. A copy of the OSB 2022 Survey is available at

https://www.osbar.org/_docs/resources/Econsurveys/22EconomicSurvey.pdf (last visited on June

8, 2023).2

B. ORS 20.075(1) Factors

The ORS 20.075(1) factors “do not inform the proper disposition of this particular fee

petition.” Strawn v. Farmers Ins. Co. of Or., 353 Or. 210, 225 n.11 (2013).

The Owens assert that each of these factors favor a large fee award, primarily based on

the “wrongful” conduct of State Farm and their unfair actions during claims the settlement

process. Pl. Mot. 12. State Farm counters that, under factor 1(e), it was the Owens who acted

unreasonably because they were responsible for some of the water damage the house

experienced, inflating the recovery failed to provide State Farm with timely and accurate

information, and under factor 1(f), State Farm diligently attempted to settle with the Owens. Def.

Resp. 19-20.

2 The parties’ briefing addresses the 2017 OSB economic survey, as the 2022 survey was not

published at the time of their briefing. This Court will rely on data from the 2022 economic

survey because it specifically covers some of the time periods spent litigating this matter

The limited record before this Court demonstrates that both parties effectively advocated

for their position in a reasonable manner and reached an efficient settlement. State Farm initially

paid some of the claims and, once this litigation commenced, promptly reached a resolution on

the remaining amount of the claim. This was not unreasonable. On the other hand, State Farm

cannot now take issue with the Owens’ conduct in seeking recovery when they ultimately paid

them a significant portion of the damages ultimately sought rather than litigate whether the

Owens were entitled to that recovery based on their alleged conduct. Accordingly, the first-step

factors are “neutral because both parties reasonably and diligently pursued their respective

claims and defenses.” See Alexander, 688 F. Supp. 2d at 1182.

B. ORS 20.075(2) Factors

This Court next calculates the presumptively reasonable rate using the lodestar

calculation and concludes that the lodestar figure adequately captures all ORS 20.075(2) factors.

1. Total Number of Hours for Merits Litigation.

State Farm raises two arguments for a reduction in the total number of the Owens’

requested hours: First, it argues the Owens should not be able to collect on any counts or issues

they are not entitled to fees for. Def.’s Resp. 16. And second, they argue there is duplicative and

administrative work that should be excluded under 20.075(2). Id. at 21-22.

a. Apportionment

“When a party prevails on . . . a claim for which attorney fees are authorized and a claim

for which they are not, the court must apportion the fees incurred for each claim. . . . [Unless the

claims] involve common legal issues . . . [such that] the party . . . would have incurred roughly

the same amount of fees irrespective of the additional claim or claims.” W. Hills Dev. Co. v.

Chartis Claims, Inc., 284 Or. App. 133, 144 (2017); see also Hoffman v. Foremost Signature Ins.

Co., 6:12-CV-01534-MC, 2014 WL 911274, at *3–4 (D Or Mar 10, 2014) (apportioning

attorney’s fees under ORS 742.061 based on the counts for which the plaintiff was entitled to

fees). However, “[w]hen there are common issues, apportionment of attorney fees among

different claims or parties may not be required.” Bush v. City of Prineville, 325 Or. App. 37, 58

(2023). In short, the court attempts to estimate the amount of time it took the plaintiff to litigate

the specific issues entitling them to fees. See Freedland v. Trebes, 162 Ore. App. 374, 378

(1999) (“fees can be awarded only for the time reasonably necessary to prevail” on the claims

that support the fee award).3

Here, all time entries that specifically relate to the negligence claim and Coverage B

Claim are unrecoverable because those hours were unnecessary for the Owens to succeed on

their fee-bearing claims. The Court has examined the billing statement and removed the

following hours related to these uncoverable claims: 6.3 Hours of Robert E.L Bonaparte’s time,

1.3 hours of Brooke Calcagno’s time, and 10 hours of Rob Bonaparte’s time related to inventory

and the Coverage B claim; and 17.1 hours of Robert E.L. Bonaparte’s time, 3.3 Hours of Stephen

Leggatt’s time, and 3.8 hours of Brooke Calcagno’s time related to the negligence claim,

amending the pleadings, and gathering medical evidence. This totals a reduction of 23.4 hours

for Robert E.L. Bonaparte, 3.3. Hours for Mr. Leggatt, 5.1 hours for Brooke Calcagno, and 10

hours for Rob Bonaparte.

3 A prime example of where time spent litigating a non-fee earning issue will count towards the

fee award is when that issue is “materially and reasonably related” to the fee earning issue.

Matter of Marriage of Baertlein & Stocks, 303 Or. App. 51, 76 (2020). In these cases, the fee

applicant essentially had to litigate the non-fee earning issue to win on the fee earning issue.

Thus, that time was essential for success on the fee earning issue and should count towards the

fee award. Id. (holding mother’s time litigating enforcement issue should count toward fee award

under modification issue because the court had to decide the modification issue to determine the

enforcement issue).

b. Excluding Duplicative Work Under ORS 20.075(2)(a)

The Court must consider “The time and labor required in the proceeding . . .” ORS

20.075(2)(a) “A party is certainly free to hire and pay as many lawyers as it wishes, but cannot

expect to shift the cost of any redundancies to its opponent.” Ash Grove Cement Co. v. Liberty

Mut. Ins. Co., No. 3:09–CV–00239–HZ, 2014 WL 837389, at *5 (D. Or. Mar. 3, 2014), aff’d,

649 Fed. Appx. 585 (9th Cir. 2016) (citations omitted). “Generally, when attorneys hold a

telephone or personal conference, good ‘billing judgment’ mandates that only one attorney

should bill that conference to the client, not both attorneys.” Precision Seed Cleaners, 976 F.

Supp. 2d at 1252 (citation and internal quotation marks omitted); see also Welch v. Metro. Life

Ins. Co., 480 F.3d 942, 949 (9th Cir. 2007) (upholding a district court’s finding under federal law

that intra-office conferences were “unnecessary and duplicative”).

Here, State Farm argues many of the billing entries are duplicative or relate to attorney

communications between one another. The two entries the Court sees as duplicative instead of

building off the prior attorney’s work are when Mr. Leggatt was on the same call as Mr.

Bonaparte for .3 hours with the Court and .5 hours with clients. The Court does not find it

unreasonable that both attorneys attended settlement discussions.

The Court does not find any of the communications between attorneys were unreasonable

or duplicative given their minimal occurrence, and that most also involved other parties and

would have needed to occur anyway.

The Court omits seven hours of Mr. Bonaparte’s travel because Mr. Bonaparte’s full rate

for having to travel a good portion of the state would be excessive. See Anderson v. Sullivan, 311

Or. App. 406, 411, review denied, 368 Or. 702 (2021) (upholding district court’s reduction of

attorney’s full rate in fees for travel from Portland to rural Oregon).

Finally, State Farm argues many billed tasks are clerical in nature and not properly billed

as attorney’s fees. Def.’s Rep. 21. “Tasks which are clerical in nature are not properly billed as

attorney fees but are overhead expenses absorbed by counsel.” Precision Seed Cleaners, 976 F.

Supp. 2d at 1251. “Tasks considered clerical include, but are not limited to, filing motions with

the court, filling out and printing documents, preparing affidavits and drafting certificates of

service, organizing files, calendaring dates, rescheduling depositions, and sending documents.”

Sterling Say. Bank v. Sequoia Crossing, LLC, No. 03:09-cv-00555-AC, 2010 WL 3210855, at *7

(D. Or. Aug. 11, 2010). The Court reduces an additional .4 Hours of Brooke Calcagno’s time for

scheduling an inspection and does not find any non-previously deducted time to be clearly

clerical in nature.

In sum, this Court concludes that reasonable hours for litigating the merits issues entitling

the Owens to attorney’s fees are 153.4 for Robert E. L. Bonaparte, 52.2 hours for Mr. Leggatt,

7.8 hours for Brooke Calcagno, and 10.6 hours for Rob Bonaparte.

2. Reasonable Hourly Rate

The Owens argue they are entitled to attorney’s fees at reasonable rates for practitioners

in Portland because they were unable to find an attorney of sufficient caliber for this case in

Baker City. Pl.’s Reply 5–6. Portland attorneys Robert Bonaparte and Stephen Leggatt seek an

hourly rate of $650.00 and $550.00, respectively, and paralegals Brooke Calcangno and Rob

Bonaparte seek an hourly rate of $175.00 and $150.00, respectively. Pl. Mot. at 8. Mr. Bonaparte

and Mr. Leggatt support their request with detailed affidavits describing their qualifications in

this matter. Bonaparte Decl., ECF 28; Leggatt Decl. ECF 27. State Farm does not dispute

counsels’ experience or qualifications. Rather, it asserts that there are many firms closer to Baker

City that charge more reasonable rates that the Owens could have gone to, so they should only be

entitled to fees customarily charged in the Baker City Area, which they assert is $250.00 to

$375.00 per hour. Def.’s Resp. 23.

This Court finds the Owens are entitled to the fees customarily charged in Oregon in

general. Oregon courts have held it is an abuse of discretion for district courts to limit fee rates

on the basis of being able to find less expensive counsel in rural Oregon because the fees must

only be reasonable for Oregon in general, not rural Oregon in specific. Robinson v. DeFazio, 284

Or. App. 98, 108 (2017) (“Defendant was not required to employ less costly local counsel to

litigate the case to be entitled to a reasonable award of attorney fees. The evidence submitted by

the defendant established that his attorneys had reasonable hourly rates for Oregon.”).

Additionally, when the case is too difficult to be litigated by attorneys in the plaintiff’s

geographic area, courts have used the locality of the plaintiff’s attorneys. See Hanna Ltd. P’ship

v. Windmill Inns of Am., Inc., 223 Or. App. 151, 166 (2008) (holding district court did not abuse

its discretion in using Portland as a locality because there was support that attorneys in the

plaintiff’s area could not litigate the case); see also Makarios-Oregon, Ltd. Liab. Co. v. Ross

Dress-For-Less, Inc., 293 Or. App. 732, 742 (2018) (holding it was not an abuse of discretion to

award more than Oregon rates for San Francisco attorneys based on the complexity of the case

and minor adjustments by attorneys and the district court).

Here, the Owens declare they “spoke to one or two local Baker City lawyers and one

“wasn’t available.” Owen’s Decl. ¶ 10. They also declare they “consistently got the advice,

including from [the one or two] local attorneys [they contacted], that [they] should consult with

lawyers in Portland, including Bob Bonaparte.” Id. In response, Bruno Jagelski, a first-party

insurance lawyer in Eastern Oregon, declares there are six firms in Eastern Oregon that were

qualified to represent the Owens in this case. Jagelski Decl. ¶ 1. On this record, this Court finds

that the Owens were not required to retain counsel in a particular locality—either Portland or

Eastern Oregon—nor were they precluded from retaining counsel in either locality. Accordingly,

Oregon in general is the best locality to judge the reasonableness of the fees.

Applying this standard, this Court concludes that an award of $550.00 per hour for Mr.

Bonaparte and $475.00 per hour for Mr. Legette is appropriate. These hourly rates are in between

the mean and 95th percentile for counsel of their qualifications. 4 For Oregon lawyers with over

30 years of experience, such as Mr. Bonaparte, the mean rate was $384.00 and the 95th

percentile was $722.00. For Oregon lawyers with 21-30 years of experience, such as Mr.

Leggatt, the mean rate was $371.00 and the 95th percentile was $600.00. For plaintiffs civil

litigation excluding personal injury, the mean rate was $374.00 and the 95th percentile was

$580.00. Rates of $550.00 and $475.00 per hour, respectively, represent a midpoint between

those numbers and are commensurate with prior fee awards to Mr. Bonaparte in similar

litigation. Bonaparte Decl. ¶¶ 12-13. With all these factors in mind and especially considering

the attorneys’ respected reputations, efficient settlement, and substantial recovery, this Court

concludes that rates of $550.00 and $475.00 are appropriate.

The Owens’ also seek rates for paralegals Brooke Calcangno and Rob Bonaparte of

$175.00 and $150.00, respectively. Although these rates are slightly higher than the mean hourly

rates for paralegals in Oregon, see Poticny v. Movers & Packers Relocation Specialists LLC, No.

3:22-CV-01243-IM, 2022 WL 18024218, at *9 (D. Or. Dec. 30, 2022), State Farm does not

4 In the past, this court has typically limited the hourly rate requested to the 75th percentile of the

OSB Economic Survey. Coos Bay RV Invs., LLC v. Wheelhaus Inc., No. 3:21-CV-00448-AC,

2022 WL 508818, at *2 (D. Or. Feb. 3, 2022) (collecting cases). The 2022 OSB economic survey

does not list the 75th percentile. Accordingly, this Court will utilize a rate between the mean and

95th percentile.

object to those amounts. Given that the Owens have provided adequate support for those rates for

paralegal services, the Court will award the requested hourly rates.

c. Modification to the Lodestar

The Owens seeks a multiplier of 1.5 in this case. “Oregon law permits an enhancement of

fees when it is supported by the facts and circumstances of the case.” Beck, 2016 WL 4978411,

at *22. An enhanced fee award may be appropriate where the recovery was an “exceptional

success,” and other favorable factors exist, including “the difficulty and complexity of the issues

involved in this case, the value of the interests at stake, as well as the skill and professional

standing of lawyers involved.” Strunk v. Pub. Emples. Ret. Bd, 343 Or. 226, 246 (Or. 2007).

A multiplier is not appropriate in this case. This Court has already concluded that the

factors set forth in ORS 20.075(1) are neutral. Moreover, the remaining factors set forth in ORS

20.075(2) that are not captured by the lodestar calculation do not justify a departure from the

lodestar calculation: (1) this case did not present a novel or difficult question, and overall the

Owens’ counsel spent a reasonable time zealously advocating the case and reaching an efficient

settlement; (2) there is no evidence this case prevented Plaintiffs’ counsel from taking other

cases; (3) the Owens obtained a $435,000.00 settlement early in the litigation on a $550,000.00

claim and are now requesting $231,000.00 in attorney’ fees; (4) the attorneys had a good

relationship with their clients and are well-respected insurance litigators; (5) the attorneys

worked on a contingent basis but were very likely to collect when accepting the case given the

amount State Farm had paid in the coverage process, reducing the impact of this factor. See

Muller v. Country Mut. Ins. Co., 3:14-CV-01345-MO, 2017 WL 6209701, at *4 (D. Or. Dec. 8,

2017) (stating contingency factor was not impactful when the posture of the insurance case leads

to an assumption of recovery). Accordingly, this Court declines to award a multiplier.

d. Fees-on-fees

“Ordinarily, a party entitled to recover attorney’s fees incurred in litigating the merits of a

fee-generating claim also may receive attorney fees incurred in determining the amount of the

resulting fee award.” Tri-Cnty. Metro. Transportation Dist. of Or. v. Aizawa, 362 Or. 1, 3, (2017)

(citations omitted).5 However, this Court must still assess the reasonableness of the fee award

under the factors set forth in ORS 20.075(2). Having already determined Plaintiffs’ counsel’s

reasonable hourly rates, this Court concludes that the only remaining factor that is relevant is the

total time spent litigating the fee petition.

Plaintiffs’ counsel asserts that they spent 122.1 hours preparing the fee petition and reply

in this case, representing 40.2 hours of Mr. Bonaparte’s time, 81.4 hours of Mr. Leggatt’s time,

and 1.1 hours of Brooke Calcagno’s time. This total time is not reasonable.

“A fee petition is a fairly standard document . . . Once an attorney puts one together,

there is no need to reinvent the wheel when next turning to a court for fees.” S.C. by K.G. v.

Lincoln Cnty. Sch. Dist., No. 6:20-CV-02277-MC, 2022 WL 1567229, at *3 (D. Or. May 18,

2022). Plaintiffs’ counsel are highly experienced litigators, familiar with the subject matter of

this lawsuit, and are well-versed in the requirements for filing a fee petition. To be sure, they

were required to address State Farm’s arguments that they were not entitled to fees at all. Even

including that additional time, however, there is no justification presented for counsel to have

spent over 122 hours preparing the fee petition and reply in this matter, which includes almost 70

hours of time spent on the reply alone. Pl. Reply. at 29. This is particularly true when it is

5 State Farm did not present specific objections to the number of hours spent on fees-on-fees, as

this issue was raised for the first time in reply. Nevertheless, “the district court [is] required to

independently review plaintiffs’ fee request even absent defense objections[.]” Gates v.

Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992).

undisputed that counsel are highly skilled—and highly compensated—lawyers who are familiar

with this area of the law. In sum, it is simply unreasonable for counsel to have spent so much

time on this fee petition. See, e.g., A.P. v. Pasadena Unified Sch. Dist., 2021 WL 5249658 *7

(C.D. Cal. Aug. 24, 2021) (“[i]t is simply unreasonable for counsel to have spent … ‘26.7’ hours

on the Reply brief alone.”).

Accordingly, based on the ORS § 20.075(a), this Court imposes a 50% reduction in the

total number of hours spent in litigating this fee petition. See S.C., 2022 WL 1567229, at *3

(finding only half the hours of a “quite bloated” fee petition were reasonable).

e. Summary

MERITS FEES - LODESTAR

Timekeeper Requested Awarded Requested Awarded Lodestar

Bonaparte 183.8 153.4 $650 $550 $84,370.00

Leggatt 56.3 52.2 $550 $475 $24,795.00

Calcagno 13.3 7.8 $175 $175 $1,365.00

Rob Bonaparte 20.6 10.6 $150 $150 $1,590.00

Total for Merits Litigation (no multiplier) $112,120.00

FEES-ON-FEES – LODESTAR

Timekeeper Requested Awarded Requested Awarded Lodestar

Bonaparte 40.2 20.1 $650 $550 $11,055.00

Leggatt 81.4 40.7 $550 $475 $19,332.50

Calcagno 1.1 .6 $175 $175 $105.00

Total for Fees-on-Fees Litigation $30,492.50

Total fee award $142,612.50

CONCLUSION

Plaintiffs are awarded $142,612.50 in attorney’s fees.

DATED this 14” Day of June 2023.

Lf HALLMAN

United States Magistrate Judge

PAGE 20 — OPINION AND ORDER