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BRERETON v. UNUMPROVIDENT CORPORATION

United States District Court, N.D. New York


April 18, 2005.

PATRICK BRERETON, Plaintiff,
v.
UNUMPROVIDENT CORPORATION; and NATIONAL LIFE INSURANCE COMPANY, Defendants.

The opinion of the court was delivered by: DAVID HURD, District Judge

ORDER

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.

  2. Back Benefits

  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
Travel
James E. Hacker (Partner) 45 $ 87.50 $ 3,937.50 Thomas D. Buchanan (Assoc.) 8 $ 62.50 500.00 ________ Total Fees $103,755.00 Expenses 52,128.78 ___________ Total Fees and Expenses $155,883.78 It is hereby
ORDERED that
  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 $468,836.00;

  3. Plaintiff is awarded past premium payments in the sum of $32,587.51;

  4. Plaintiff is awarded attorney's fees and expenses in the sum of $155,883.78;

  5. Plaintiff is awarded damages under Gen. Bus. Law § 349 in the sum of $150.00;

  6. Plaintiff is awarded the total sum of $657,457.29;

  7. Defendants are directed to immediately resume benefits to plaintiff pursuant to the terms of Policy D218361 and Policy D1547097.

  The Clerk is directed to enter judgment accordingly.

  IT IS SO ORDERED.

20050418

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