HOLLER v. HARTFORD LIFE ACCIDENT INSURANCE CO

conclusions are based on Dr. Bress's mischaracterization and misstatement of the record.

While the letter does not specify, the Court interprets "ACR" to stand for "American College of Rheumatology."

Dr. Bress's conclusion that there is no evidence to support fibromyalgia or limitations therefrom is supported in part by a written report summarizing the October 2000 video surveillance tape which defendant relied upon in part to support its denial decision in Holler I. As the Court noted in Holler I, while the video surveillance may support that conclusion that plaintiff can perform a range of activities, it "does not establish that plaintiff can perform such activities for the

duration of an eight-hour work day, five days a week." (Holler I, Doc. 31, p. 11). Moreover, "reliance on the video surveillance report is undermined by the fact that the investigator waited outside plaintiff's residence for three days, yet observed plaintiff outside her home on only one day." (Id.). In addition, Dr. Bress did not actually observe plaintiff lifting or handling objects on the video; rather, he reviewed a written report which listed or summarized the activities she was alleged to have undertaken on the video. (ADM 58). He states that plaintiff has acknowledged that on "good days" she can perform all of the activities listed in the video summary. (ADM 63). The issue presented is not whether plaintiff can perform some or all of this laundry list of activities part of the time, but whether she can perform sustained work-related activity forty hours per week. As noted by the Court in Holler I, the video does not support such a finding. Nevertheless, Dr. Bress uses this evidence to conclude that plaintiff can perform these activities on a sustained basis and therefore is able to engage in the work activities associated with a range of sedentary to light work. (ADM 63).

Similarly, Dr. Bress puts great emphasis on the results of plaintiff's December 2004 stress test which was administered as part of her evaluation for coronary artery disease by Dr. Hutchins. Dr. Bress concludes that the results are inconsistent with the findings of her treating physicians that she has shortness of breath on exertion. Assuming that to be the case, the stress test standing alone does not constitute evidence that plaintiff can perform sustained work activity for eight hours a day, five days a week.

Finally, and perhaps most tellingly, Dr. Bress's report selectively refers to certain portions of the record or mis-states or mis-characterizes the record to paint a picture from which to conclude there is a dearth of evidence to support the diagnosis of fibromyalgia by plaintiff's treating physicians. Dr. Bress states that "multiple notes do not mention trigger points" and specifically references notes by Drs. Henthorn, Hutchins, Schrock and Diller in support of this conclusion. Dr. Bress's statement that Dr. Henthorn's July 14, 2005 note "makes no mention of fibromyalgia" is directly contradicted by the "Impression" section of note itself. (ADM 104, 113-14). In addition, it bears noting that plaintiff was referred to Dr. Henthorn for a head-up tilt examination due to recurring problems with lightheadedness and dizziness, not for treatment or assessment of her fibromyalgia or any other condition. (Id.).

Dr. Bress likewise refers to a November 11, 2005 note by Dr. Hutchins, plaintiff's cardiologist, which includes a complaint of leg pain at night but does not discuss any complaints of fibromyalgia. Review of this record reveal that the note is also accompanied by a letter from Dr. Hutchins to Dr. Diller on that same date which indicates that the purpose of the office visit was to follow-up with plaintiff for coronary artery disease and persistent chest pain. (ADM 93-94). The letter also indicates that the Dr. Hutchins's note regarding plaintiff's leg pain was made in the course of ruling out claudication. (ADM 93). Thus, it is not rational to conclude that a lack of reference to fibromyalgia in this note indicates that plaintiff is not suffering from that disease.

Dr. Bress refers to two notes from Dr. Diller dated March 31, 2005 and April 28, 2005, which he also states do not mention tender points or plaintiff's fibromyalgia.

The April 28, 2005 note is from a follow-up appointment for numbness and tingling of the right arm and leg as well as chest pain. (ADM 432). Its reference to "no point tender" appears in a section addressing low back pain. (Id.). While Dr. Bress would single this note out to demonstrate a lack of references to tender points or fibromyalgia, there are multiple notes in the file from Dr. Diller which do refer to plaintiff's fibromyalgia and or tender points. (See e.g. ADM 121, 181, 147, 426, 440, 442, 443, 450). The March 31, 2005 note was from a follow-up visit following an emergency admission to Christ Hospital on February 23, 2005, and a low blood pressure reading taken at a prior follow-up office visit on March 4, 2005. (ADM 434-35).

Finally, Dr. Bress points to a note from Dr. Schrock dated February 23, 2005, which did not include a discussion of fibromyalgia or tender points, in support of Dr. Bress's opinion that there is no evidence to support plaintiff's fibromyalgia diagnosis or related limitations. As mentioned above, plaintiff was admitted to Christ Hospital on an emergency basis on February 23, 2005. Review of the note from Dr. Shrock reveals that plaintiff presented in the doctor's office that day complaining of shortness of breath and lightheadedness and that she was on breathing medication without improvement. Based on Dr. Shrock's review of her vitals and an EKG test that day, he recommended that she be admitted to the emergency department "to evaluate for MI vs. Heart failure vs. pneumonia." (ADM 436-37). It defies common sense to conclude that the lack of reference to fibromyalgia when plaintiff was being rushed to the ER somehow supports the conclusion that she does not also suffer from that illness.

The Administrative Record as a whole is replete with medical records which address plaintiff's fibromyalgia. Indeed, that diagnosis is among the reasons why she began treating with Dr. Blatman in the first instance. (See e.g. ADM 355, 373-74, 480-81). Her treating physicians who deal with her fibromyalgia, among other conditions, have rendered opinions that she cannot sustain work activity for a full eight hour day. These opinions are not contradicted in the record by any other physician who has examined and or treated her for fibromyalgia. Dr. Bress's review of the medical record upon which defendant relies to deny plaintiff's benefits claim selectively focuses on certain documents to the exclusion of others and mischaracterizes the record evidence to support his opinion. His opinion cannot be supported by a rational review of the record. Not only does he disregard the opinions of Drs. Blatman and Diller as to plaintiff's functional limitations resulting form her fibromyalgia, he goes so far as to conclude that the records do not support such a diagnosis in the first instance, or any limitations deriving therefrom. These conclusions are neither reasonable nor rational in light of the Administrative Record.

Defendant's Conflict of Interest Is Entitled to Significant Weight

As noted above, a conflict of interest exists where the claims administrator of an ERISA benefit plan serves dual roles as both Plan Administrator and Plan Insurer. It si undisputed that defendant Hartford filled these dual roles in the present case. The Court must take this factor into account when considering whether defendant's decision to deny benefits was arbitrary and capricious. The Court agrees with defendant that the mere existence of such a conflict is not sufficient in and of itself to find an abuse of discretion on the part of the Hartford Plan. See Green, 461 F.3d at 666, 674. However, in this case, and given the other factors discussed above, the conflict is entitled to greater weight. The fact that defendant required plaintiff to apply for social security disability benefits under the theory that she could not do any work and then ignored the SSA decision to award benefits, coupled with its unreasonable requirement of objective evidence to support plaintiff's fibromyalgia diagnosis, and its heavy reliance on Dr. Bress's opinion which supported by the record, the Court calls to question Hartford's "seemingly inconsistent positions [which] were both financially advantageous." Green, 128 S.ct. at 2352.

Upon review of the record as a whole, Dr. Bress's conclusions and defendant's reliance thereon are neither reasonable nor rational and cannot support Hartford's decision to deny benefits under the Plan. Plaintiff was awarded LTD benefits under the Plan's "any occupation" provisions based on the limitations imposed by fibromyalgia, COPD and low back pain. Defendant then reversed course. This Court reversed defendant's denial decision in Holler I based on defendant's unreasonable rejection of plaintiff's treating physician's opinion concerning the limitations imposed by her diagnosed fibromyalgia. In this case, as discussed above, defendant's initial denial of plaintiff's claim was based on the untenable position that there was no objective evidence to support impairment based on fibromyalgia. Defendant has improperly ignored the Social Security Administration's finding that plaintiff is disabled from her impairments, and seeks to rest its denial decision on a selective reading and mischaracterization of the record. This it cannot do.

For all these reasons IT IS HEREBY RECOMMENDED THAT: Plaintiff's motion for judgment on the pleadings be GRANTED and judgment be entered in her favor on her ERISA claim.

NOTICE TO THE PARTIES REGARDING THE FILING OF OBJECTIONS TO THIS R R

Pursuant to Fed.R.Civ.P. 72(b), within fourteen (14) days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. This period may be extended further by the Court on timely motion for an extension. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendation is based in whole or in part upon matters occurring on the record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947 (6^th Cir. 1981); Thomas v. Am, 474 U.S. 140, 106 S.ct. 466, 88 L. Ed. 2d 435 (1985).

ORDER: (1) DENYING DEFENDANT'S MOTION TO ALTER JUDGMENT (Doc. 45); AND (2) GRANTING PLAINTIFF'S MOTION FOR REASONABLE ATTORNEYS' FEES AND COSTS (Doc. 35) This civil action is currently before the Court on Defendant's motion to alter judgment. (Doc. 45). Plaintiff did not file a memorandum in opposition.

Plaintiff's failure to submit a memorandum in opposition to Defendant's motion may be deemed sufficient grounds for the Court to grant the motion. S.D. Ohio Civ. R. 7.2(a)(2). However, in the interests of justice, the Court will address the substantive issues raised in the motion.

Also before the Court is Plaintiff's motion for reasonable attorneys' fees and costs (Doc. 35), supplemental memorandum in support (Doc. 43), and Defendant's memorandum in opposition (Doc. 48).

I. MOTION TO ALTER JUDGMENT

A. Standard of Review

Federal Rule of Civil Procedure 59(e) permits a party to file a motion to alter or amend a judgment. The Sixth Circuit has determined, however, that a motion to alter or amend judgment may be granted only: "(1) to correct a clear error of law; (2) to account for newly discovered evidence or an intervening change in the controlling law; or (3) to otherwise prevent manifest injustice." CGH Transp. Inc. v. Quebecor World, Inc., 261 Fed. Appx. 817, 823 (6th Cir. 2008) (citing GenCorp, Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999)). Any "newly discovered evidence" the moving party provides must have been previously unavailable. Id. (citing GenCorp, 178 F.3d at 834). "Further, under Rule 59(e), parties cannot use a motion for reconsideration to raise new legal arguments that could have been raised before a judgment was issued." Roger Miller Music, Inc. v. Sony/ATV Publ'g, 477 F.3d 383, 395 (6th Cir. 2007) (citation omitted).

In addition to the substantive requirements of a successful Rule 59(e) motion, the Rule also states that "a motion to alter or amend a judgment must be filed no later than 10 days after the entry of the judgment." Fed.R.Civ.P. 59(e). The ten-day filing period is jurisdictional in nature, and any motion to reconsider filed outside this time frame is of no effect. Feathers v. Chevron, U.S.A., Inc., 141 F.3d 264,268 (6th Cir. 1998). Defendant's motion to alter needed to be filed by September 8, 2010 in order to meet this deadline. ( See Docs. 40, 41). However, Defendant filed its motion on September 24, 2010. (Doc. 45).

A motion to reconsider filed more than ten days after the entry of judgment is treated as a motion for relief from judgment under Fed.R.Civ.P. 60(b). The standard for granting a Rule 60 motion is significantly higher than the standard applicable to a Rule 59 motion. Rule 60(b) provides that relief may be granted only for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud, misrepresentation, or other misconduct of an adverse party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or

(6) any other reason justifying relief from the operation of the judgment.

Fed.R.Civ.P. 60(b).

B. Analysis

Defendant moves the Court to alter or amend its decision and judgment to remove all references to: (1) an award of future benefits; (2) complete deference afforded to the opinions of Plaintiff's physician in determining her entitlement to future benefits; and (3) the finding that Defendant has a "history of biased claims administration."

1. Future benefits

Under ERISA, a civil action may be "brought by a participant or beneficiary . . . to recover benefits due him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B). Defendant claims that the Court's decision exceeded these statutorily provided remedies by going beyond reinstating benefits and awarding past due benefits, to awarding future benefits.

The Court hereby clarifies its ruling. The Court concluded that Plaintiff remains totally disabled and entitled to benefits under the Plan. The Court has not determined Plaintiff's entitlement to future benefits. However, as long as her condition does not improve, she is entitled to the disability until her 67th birthday in 2031. Nothing prevents Plaintiff's health insurance plan from evaluating whether she continues to be disabled in the future.

2. Deference to Plaintiff's physician

Next, Defendant argues that the Court improperly ordered it to defer to Plaintiff's physician's opinion when evaluating her right to continued benefit payments under the plan. Such deference is also known as the "treating physician rule," and Defendant claims that it does not apply in the ERISA context. The Court acknowledges that plan administrators need not accord special deference to the opinions of claimants' treating physicians; however "plan administrators may not arbitrarily refuse to credit a claimant's reliable evidence including the opinions of a treating physician." Black Decker Disability Plan v. Nord, 538 U.S 822, 834 (2003). The Court is not suggesting that Defendant may not seek and obtain other medical input concerning Plaintiff's medical status. In its opinion, the Court simply emphasized that as a result of Defendant's past arbitrary and capricious decisions relating to Plaintiff, specifically Defendant's rejection of Plaintiff's treating physician in favor of consultants who reviewed only a summary of the record, Defendant must credit reliable opinions of Plaintiff's treating physicians as required by law. 3. History of Biased Claims Administration

Finally, Defendant takes issue with the following statement in the Court's decision:

Defendant has a clear history "of biased claims administration." Defendant exhibited "bias" in its arbitrary denial of Plaintiffs original claim. It also expressed bias in its internal emails which celebrated its denial of Plaintiff's claim. Defendant even referred Plaintiff to the Ohio Department of Insurance, Fraud Division. Accordingly, Defendant's conflict is, as a matter of law, of "great importance." Therefore, to the extent that the Report and Recommendations give significant weight to Defendant's conflict, such weight is proper under the facts.

(Doc. 40 at 10-11). Defendant argues that the evidence in this case was strictly limited to Plaintiff's claim and that all of the Court's findings regarding Defendant's "bias" were case-specific. The Court does not disagree with Defendant's contentions, nor do they change the Court's analysis. The Court maintains that there is a clear history of biased claims administration in the instant case. It is clear from the language of the opinion that the Court was not referring to Defendant's claims administration processes in general — a conclusion that this Court would have no basis to make. Therefore, the Court declines Defendant's request that the Court amend its order to remove the reference to a "history of biased claims administration."

As this Court noted in its decision, the instant case is the third of three ERISA cases filed in this Court by Plaintiff concerning the termination of her LTD benefits.

Accordingly, and given the instant clarification of the Court's original decision and judgment, Defendant's motion to alter judgment (Doc. 45) is DENIED.

II. MOTION FOR ATTORNEYS' FEES

Plaintiff moved for attorneys' fees and costs (including prejudgment interest) pursuant to Section 502(g)(2) of the Employee Retirement Income Security Act of 1074 ("ERISA"), 29 U.S.C. § 1132(g)(2). In support of its motion, Plaintiff submitted the declaration of attorney Michael Roberts and an itemized listing of the attorneys' fees and costs. (Doc. 35, Exs. 1, 2).

A. Standard of Review

In most lawsuits seeking relief under ERISA, "a reasonable attorney's fee and costs are available to either party at the court's discretion." Hardt v. Reliance Standard Life Ins., 130 S.ct. 2149, 2152 (2010) (quoting 29 U.S.C. § 1132(g)(1)) (citation omitted). Although the language of the statute is silent regarding the degree of success a party must achieve in order to be eligible for an award of attorneys' fees, in Hardt, the Supreme Court interpreted the language of § 1132(g)(1) to allow an award of attorneys' fees "`in its discretion' . . . `to either party' . . . as long as the fee claimant has achieved `some degree of success on the merits.'" Id. (quoting Ruckelshaus v. Sierra Club, 463 U.S. 680, 694 (1983); 29 U.S.C. § 1132(g)(1)).

The Fourth Circuit's five-factor test considered in Hardt is identical to the King test utilized in this Circuit. Compare Hardt, 130 S.Ct. at 2155 n. 1 (quoting Quesinberry v. Life Ins. Co. of North Am., 987 F.2d 1017, 1029 (4th Cir. 1993) (setting out the Fourth Circuit test)) and Gaeth v. Hartford Life Ins. Co., 538 F.3d at 529 (6th Cir. 2008) (setting out the Sixth Circuit test). The Supreme Court did not, however, "foreclose the possibility that once a claimant has satisfied this requirement [some success on the merits], and thus becomes eligible for a fees award under § 1132(g)(1), a court may consider the five factors adopted by the Court of Appeals . . . in deciding whether to award attorney's fees." Hardt, 130 S.Ct. at 2158 n. 8. Hardt, therefore, adds a threshold determination to a court's analysis of a motion for fees under § 1132(g)(1). Once a court determines that a claimant has achieved "some degree of success on the merits," it may apply a factor test to determine whether to award fees.

B. Analysis

Plaintiff's eligibility for attorneys' fees and costs under § 1132(g)(1) turns on the question of whether she has achieved "some degree of success on the merits." Hardt, 130 S.Ct. at 2158. The Court easily concludes that Plaintiff has achieved "some degree of success on the merits."

Plaintiff's eligibility for attorneys' fees, however, does not establish her entitlement to them. Hardt, 130 S.Ct. at 2158 n. 8 ("[O]nce a claimant . . . becomes eligible for a fees award . . . a court may consider the five factors . . . in deciding whether to award attorney's fees."). The factors of the King test must weigh in favor of an award of attorneys' fees before a district court in this Circuit will exercise its discretion to grant such fees. Kauffman v. Sedalia Med. Center, Inc., No. 2:04cv543, 2007 U.S. Dist. LEXIS 9572 at *1 (Feb. 9, 2007 S.D. Ohio).

The King factors are as follows: (1) the degree of the opposing party's culpability or bad faith; (2) the opposing party's ability to satisfy an award of attorneys' fees; (3) the deterrent effect of an award on other persons under similar circumstances; (4) whether the party requesting fees sought to confer a common benefit on all participants and beneficiaries of an ERISA plan or resolve significant legal questions regarding ERISA; and (5) the relative merits of the parties' positions. Gaeth, 538 F.3d at 529. Because no single factor is determinative, the Court will consider each factor in turn. Moon v. Unum Provident Corp., 461 F.3d 639, 642-43 (6th Cir. 2006).

1. Culpability or bad faith

This Court's finding that Defendant's denial of benefits was arbitrary and capricious does not mean that the denial was made in bad faith. Foltice v. Guardsman Products, Inc., 98 F.3d 933, 937 (6th Cir. 1996). Rather, "the Court considers the circumstances surrounding the denial," in order to determine the level of Defendant's culpability or bad faith. Kauffman, 2007 U.S. Dist. LEXIS 9572, at *1. It is important to note that culpability and bad faith are not synonymous — as is demonstrated by the disjunctive "or" in the King test. Pelchant v. Unum Life Ins. Co., No. 3:02CV7282, 2003 U.S. Dist. LEXIS 10709, at *2 (N.D. Ohio June 25, 2006). "Culpability is merely defined as `blameworthiness.'" Id. at *2 n. 1 (citing Black's Law Dictionary 385 (7th ed. 1999)). Bad faith, on the other hand, has been defined by the Sixth Circuit as "arbitrary, reckless, indifferent, or intentional disregard of the interests of the person owed a duty." Benkert v. Med. Protective Co., 842 F.2d 144, 149 (6th Cir. 1988).

The Sixth Circuit has found that "[w]here a plan administrator engages in an inadequate review of a beneficiary's claim or otherwise acts improperly in denying benefits," the culpability aspect of the King test is satisfied. Shelby County Health Care Corp. v. Majestic Star Casino, 581 F.3d 355, 377 (6th Cir. 2009). A paper review that fails to take treating physicians' opinions into account is an example of an inadequate review. Moon v. Unum Provident Corp., 461 F.3d 639, 643-44 (6th Cir. 2006). This factor, therefore, weighs in favor of such an award.

2. Defendant's ability to satisfy an award of attorneys' fees

Defendant does not dispute its ability to satisfy an award of attorneys' fees. This factor, therefore, weighs in favor of such an award.

3. Deterrent effect of a fee award

The key question in analyzing this third factor is . . . whether the fee award [will] have a deterrent effect on other plan administrators." Gaeth, 538 F.3d at 532. The deterrent effect on other plan administrators is likely to have more significance in a case where the defendant is highly culpable — where "deliberate misconduct is in the offing," rather than when the plan administrator has just made an "honest mistake." Foltice, 98 F.3d at 937. Lack of bad faith should not impact whether a court finds fees could have a deterrent effect. Moon, 461 F.3d at 645.

In this case, Defendant's benefits determination does fall within the category of "misconduct" rather than just an "honest mistake." Defendant's plan administrator failed to afford any weight to the Social Security Administration's determination that the claimant was totally disabled, failed to provide any explanation for rejecting the treating physician's opinion, and provided an incomplete record to the administrator's medical consultant. Similar to the Sixth Circuit's reasoning for awarding fees in Moon, awarding Plaintiff's fees will warn plan administrators that "before terminating a plan participant's benefits, a plan administrator should ensure that the opinions upon which they rely to make their decisions are based on a thorough review of the administrative record." Id. Thus, this third King factor also weighs in favor of awarding attorneys' fees.

4. Conferring a common benefit on Plan participants or resolving a significant legal question under ERISA

Plaintiff filed this case for her own benefit. Accordingly, she has not sought to confer a common benefit on other plan participants. Moon, 461 F.3d at 645. Additionally, no significant ERISA legal question has been or will be resolved by this case. Therefore, this factor weighs against awarding attorneys' fees.

5. Relative merits of the parties' positions

The Court reinstated Plaintiff's benefits in this case. Therefore, this factor favors Plaintiff and weighs in favor of awarding attorneys' fees.

None of the factors examined above is alone dispositive. Foltice, 98 F.3d at 937. The factors, do, however, inform the discretion of this Court. Id. at 936 ("When exercising the discretion vested in the district court by 29 U.S.C. § 1132(g)(1), we have said, the district court should consider the [King] factors"). On balance, four factors weigh in favor of awarding attorneys' fees, and one weighs against. Considering these King factors in light of the evidence on the record, this Court awards reasonable costs and attorneys' fees to Plaintiff.

III. REASONABLENESS OF FEES

The starting point for determining the amount of reasonable attorneys' fees is the "lodestar" amount. Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 551 (6th Cir. 2008). This is calculated by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. Id. "Where the party seeking attorney fees has established that the number of hours and the rate claimed are reasonable, the lodestar is presumed to be the reasonable fee to which counsel is entitled." Pennsylvania v. Del. Valley Citizens Council for Clean Air, 478 U.S. 546 (1986).

A. Hours Expended

In determining the hours reasonably expended by a prevailing party's counsel,

[t]he question is not whether a party prevailed on a particular motion or whether in hindsight the time expenditure was strictly necessary to obtain the relief requested. Rather, the standard is whether a reasonable attorney would have believed the work to be reasonably expended in pursuit of success at the point in time when the work was performed.

Woolridge v. Marlene Indus. Corp., 898 F.2d 1169, 1173 (6th Cir. 1990). Plaintiff submits that 151.4 hours were reasonably expended by her counsel on this case for a total of $33,549.00 in attorney fees. (Doc. 35, Ex. 2; Doc. 43). Defendant has objected in part to the hours Plaintiff has claimed. (Doc. 48).

Defendant claims that Plaintiff's invoices in support of her motion for attorneys' fees include $6,507 in charges for time spent in Holler v. Hartford Life Accident Ins. Co., Case No. 1:06cv405, in which Plaintiff challenged Hartford's right to apply certain offsets in calculating payments. (Doc. 48). The parties and the Court have referred to the offset action as "Holler II." The District Court in Holler II ruled in Hartford's favor. See 1:06cv405 at Doc. 28. Although Plaintiff appealed and the case was settled during the appeal, the underlying judgment was not vacated or reversed. Therefore, Defendant argues that the time counsel spent in Holler II should not be allowed as recoverable fees. Because Plaintiff did not object to this argument, the Court will exclude all fees incurred in Holler II.

Holler II concerned whether Plaintiff was disabled under the "any occupation" standard.

As a result of a mediation conducted during that appeal, Holler and Hartford agreed to a settlement that included a dismissal of the appeal (Case No. 08-3440, dismissed by Stipulation filed June 17, 2008).

After reviewing counsel's billing records, the Court finds the remaining hours reasonable.

B. Fee Enhancement

In addition to the requested attorneys' fees and costs, Plaintiff requests an enhancement of two times the requested fee award to punish Defendant for its bad faith. (Doc. 43). Plaintiff does not provide any legal support for this request.

The Supreme Court recognizes that the lodestar figure is the "guiding light of our fee-shifting jurisprudence" and that enhancement of attorneys' fees "would likely duplicate in substantial part factors already subsumed in the lodestar." City of Burlington v. Dague, 505 U.S. 557, 562 (1992). Plaintiff's contention that an enhancement would serve as a deterrent is unpersuasive because that factor was already considered in the decision whether to award initially. Moreover, ERISA prohibits punitive damages, which is effectively what this Court would be awarding if it enhanced the attorneys' fees. Mertens v. Hewitt Assocs., 508 U.S. 248, 255 (1993) (punitive damages are not considered "equitable relief" for the purposes of 29 U.S.C. § 1132(a)(3)). Accordingly, the Court declines to enhance Plaintiff's fee award.

C. Reasonable Hourly Rates

This Court finds Plaintiff is eligible for attorneys' fees under 29 U.S.C. § 1132(g)(1) because she has achieved more than trivial success on the merits of her claim. This Court also finds the King factors weigh in favor of awarding Plaintiff's attorneys' fees, which are reasonable with regard to the number of hours and rate requested. Therefore, Plaintiff's motion for attorneys' fees (Doc. 35) is GRANTED.

Defendant does not object to the hourly rates. (Doc. 49 at ¶ 2).

WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED THAT:

1. Plaintiff shall be entitled to recover from Defendant Hartford Life and Accident Insurance Company, $27,042.00 in reasonable attorneys' fees; and

2. Plaintiff shall also be entitled to recover from Defendant Hartford Life and Accident Insurance Company, $359.75 in costs.

Considering Plaintiff's reasonable attorneys' fees and costs, as well as this Court's judgment set forth in its decision and entry (Docs. 40, 41), final judgment is entered in favor of Plaintiff and against Defendant Hartford Life and Accident Insurance Company, plus recovery of attorney's fees and costs in the total amount of $27,401.75.

IT IS SO ORDERED.