The opinion of the court was delivered by: DAVID HURD, District Judge
On March 2, 2005, a jury returned a verdict in favor of the
plaintiff Patrick Brereton and against the defendants on both his
breach of contract and Gen. Bus. Law § 349 claims. The defendants
have moved for judgment as a matter of law or for a new trial
pursuant to Fed.R.Civ.P. 50(b). Plaintiff opposed. Plaintiff
submitted papers supporting amounts for back benefits, past
premium payments, and for attorney's fees and expenses.
Defendants dispute the proposed amounts and oppose the award of
attorney's fees and expenses. Oral argument was heard on April
15, 2005, in Utica, New York. Decision was reserved. 1. Motions for Judgment as a Matter of Law or for New Trial
Defendants' arguments have been considered and found to be
without merit. Defendants' motions will be denied.
In consideration of trial testimony and the jury verdict,
plaintiff's disability is considered as continuing to date. Back
benefits are awarded through the day of entry of judgment.
Besides objecting to this initial determination, the parties do
not dispute the amounts owed on two of the three disability
policies. Plaintiff will be awarded $374,536.00 on Policy
D218361. Plaintiff will be awarded $94,300.00 on Policy D1547097.
Both figures include an interest factor of 9%.
Pursuant to Policy D1615945, plaintiff was owed benefits for 60
months or until his fifty-fifth birthday, whichever was later, if
he became disabled from his "own" occupation. He was paid these
benefits until November 2001, which was beyond his fifty-fifth
birthday and for more than 60 months. To receive additional
benefits under the policy, plaintiff would have to be considered
disabled from "any" occupation. This issue was not raised at
trial by either party. Defendants' failure to raise the issue at
trial will not serve as a waiver of the contractual language of
the policy. The jury never considered whether plaintiff was
disabled from "any" occupation. Plaintiff will not be awarded
additional payments without defendants being given the
opportunity to review plaintiff's condition under the completely
different definition of "any" occupation. Therefore, back
benefits with regard to Policy D1615945 are denied. 3. Past Premium Payments
As with the back benefits owed on the polices, the parties do
not dispute the premium payments made on Policy D218361 and
Policy D1547097. Premium payments made on Policy D1615945 need
not be refunded. Accordingly, the amount awarded plaintiff is
$32,587.51, which includes an interest factor of 9%.
4. Gen Bus. Law § 349 Damages
Plaintiff is awarded $50.00 on the Gen. Bus. Law § 349 claim.
The defendants willfully and knowingly violated the section and
therefore the amount is increased three times to $150.00.
5. Attorney's Fees and Expenses
The plaintiff is awarded reasonable attorney's fees and
expenses pursuant to Gen. Bus. Law § 349. The fees and expenses
shall not be reduced, and the plaintiff penalized, because he was
also successful in his breach of contract claim.
The following fees and expenses are reasonable:
Hours Rate Total
James E. Hacker (Partner) 316.3 $175.00 $ 55,352.50
Thomas D. Buchanan (Assoc.) 333 $125.00 41,625.00
Christine L. Need (Paralegal) 36 $ 65.00 2,340.00
James E. Hacker (Partner) 45 $ 87.50 $ 3,937.50
Thomas D. Buchanan (Assoc.) 8 $ 62.50 500.00
Total Fees $103,755.00
Total Fees and Expenses $155,883.78 It is hereby
1. The defendants' motion for judgment as a matter of law, or
for a new trial is DENIED;
2. Plaintiff is awarded back benefits in the sum of
3. Plaintiff is awarded past premium payments in the ...