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Executive Risk Indemnity Inc. v. Fieldbridge Associates LLC

United States District Court, S.D. New York

March 18, 2015

EXECUTIVE RISK INDEMNITY INC., as subrogee of ANDREWS INTERNATIONAL, INC. and COPSTAT SECURITY, LLC, Plaintiffs,
v.
FIELDBRIDGE ASSOCIATES LLC, Defendant.

MEMORANDUM AND ORDER

KEVIN NATHANIEL FOX, Magistrate Judge.

The plaintiffs, Executive Risk Indemnity Inc. ("Executive Risk"), and its insureds, Andrews International, Inc. ("Andrews") and Copstat Security, LLC ("Copstat"), have made an application for attorneys' fees pursuant to Federal Rule of Civil Procedure 54. The plaintiff's seek attorneys' fees and costs incurred in connection with the defense of Andrews and Copstat in an action denominated Willis Jackson v. Fieldbridge Associates LLC, Andrews International, Inc. and Copstat Security. Inc. (hereinafter underlying action"), which was filed in New York State Supreme Court, Bronx County, in 2008.[1] Defendant Fieldbridge Associates, LLC ("Fieldbridge") acknowledges that it is liable for the attorneys' fees and costs incurred by the plaintiffs in connection with the defense of the underlying action and, on April 29, 2014, executed a stipulation to that effect. The plaintiffs also seek to recover the attorneys' fees and costs they incurred in bringing the instant action, which, they contend, was occasioned by

Fieldbridge's initial refusal to honor its obligation to the plaintiffs, pursuant to a prior agreement.

The defendant opposes the plaintifk' application on the grounds that the amount of the attorneys' fees requested in connection with the defense of the underlying action is excessive and the plaintiffs are not entitled to the fees incurred in bringing this action.

Plaintiffs' Contentions

The plaintiffs seek attorneys' fees and costs in the amount of $161, 386.06 for the defense of Andrews and Copstat in the underlying action. In support of their application, the plaintiffs have submitted the affirmation of their counsel in that action, Barry Jacobs, Esq. ("Jacobs"), a partner of the law firm Abrams, Gorelick, Friedman and Jacobson, LLP ("Abrams law firm"). In his affirmation, Jacobs avers that he was hired by the plaintiffs to provide a defense of Andrews and Copstat in the underlying action. Jacobs contends that, in the course of his defense of Andrews and Copstat, he moved for summary judgment dismissing the case and, thereafter, filed a supplemental affirmation in which he alerted the court to a "strikingly similar case, Gripper v. Fieldbridge Associates, LLC and Andrews International LLC, which was also before the [New York State] Supreme Court, County of Bronx." According to Jacobs:

The plaintiffs in Gripper were represented by the same attorneys as the plaintiff in the [u]nderlying [a]ction, and both cases resulted in motion practice prior to the completion of discovery. The allegations of negligence as set forth in Gripper were identical to the allegations of negligence set forth in the [u]nderlying [a]ction and the Bill of Particulars to those cases were virtually the same.... By alerting the underlying court of the Gripper case and providing a copy of the court's decision granting dismissal of the Gripper action, I advised the court of legal precedent which required [it] to grant Andrews's and Copstat's motion for summary judgment.

By an order dated March 27, 2013, the New York State Supreme Court granted the motion for summary judgment and dismissed the action.

Through his affirmation, Jacobs avers that he graduated from Brooklyn Law School in 1980, was admitted to the New York State bar in 1981 and is admitted to the United States District Court, Southern and Eastern Districts of New York, and to the United States Court of Appeals, Second Circuit. Jacobs avers that he has had extensive trial experience during his thirty-three years in practice and that his entire career has been devoted to the defense of general liability and professional liability claims. Jacobs is an instructor at the National Institute of Trial Advocacy.

Jacobs asserts that he spent 129.7 hours in defending the underlying action and that the Abrams law firm spent 464.4 hours in defending the action. The hours worked included court appearances, preparing pleadings and motion papers, reviewing and analyzing file materials, taking and defending depositions, legal research and corresponding with the parties to the matter. In addition, the Abrams law firm obtained the services of investigators and experts, which were necessary to the defense of the underlying action, which involved general liability, contract and criminal law issues.

Jacobs states that his hourly rate is $290, the hourly rate of the associates who worked with him on this matter was $225, and the paralegal and clerk time was billed at the rate of $100 per hour. Annexed as exhibits to Jacobs' affirmation are: (1) an Excel spread sheet reflecting the amounts of the invoices submitted to Chubb & Son and the amounts paid thereon; (2) the Abrams law firm's itemized bills for the legal fees and costs incurred in the defense of the underlying action, including contemporaneous time records; (3) the checks received by the Abrams law firm from Executive Risk in payment of the fees and costs incurred; and (4) itemized bills of costs for investigative work, experts and depositions.

The plaintiffs contend that they are also entitled to the attorneys' fees and costs incurred in bringing the instant action. The plaintiffs assert that "[h]ad Fieldbridge's insurer... accepted Plaintiffs' defense in the [u]nderlying [a]ction then the within action would not have been necessary. Plaintiffs were forced to pursue this separate litigation against Fieldbridge before Fieldbridge and [its insurer] finally acknowledged their clear contractual obligation."

Through an affirmation submitted to the Court, the plaintiffs' counsel in this action, Andrew I. Hamelsky, Esq. ("Hamelsky"), seeks attorneys' fees in the amount of $16, 888.60 and costs in the amount of $519.95. Hamelsky, who is a partner of the law firm White and Williams, LLP, avers that he was hired by Chubb & Son on behalf of Executive Risk to commence this action against Fieldbridge in order to recover defense costs expended by Chubb & Son and Executive Risk, which should have been assumed by Fieldbridge and its insurer. Hamelsky contends that he spent 25.4 hours, at the hourly rate of $265, handling this matter, and that his associate, Jennifer A. Scarcella, Esq., who also worked on this matter, spent 30.2 hours, which were billed at the hourly rate of $180.

Hamelsky notes that he has provided professional resumes for himself and his associate and contends that his hourly rate is in line with the prevailing rate charged by attorneys in the New York City area who practice a similar type of law and have a similar level of experience. The plaintiffs' submissions in support of their application for costs and fees incurred in connection with the instant action are beret' of any ...


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