### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

‐ 1861

L EE A NN P RATHER

, Plaintiff

‐ Appellant

,

v.

S UN L IFE AND H EALTH I NSURANCE C OMPANY (U.S.),

Defendant

‐ Appellee

.

____________________

Appellant’s Petition for Award of Attorneys’ Fees

____________________

M ARCH 30, 2017

____________________

Before W OOD

, Chief Judge

, and P OSNER and W ILLIAMS

,

Circuit Judges

.

P OSNER

, Circuit Judge

. The plaintiff’s decedent, Jeremy

Prather, was employed by a company that had obtained a

Group Insurance Policy from Sun Life which provided acci

‐

dental death and dismemberment coverage for the compa

‐ ny’s employees, in the amount of $92,000 for Prather. The

policy limited coverage to “bodily injuries

... that result di

‐ rectly from an accident and independently of all other causes .”

The clause we’ve italicized was the focus of an appeal from

the district court, which had granted summary judgment for2 No. 16

‐ 1861

Sun Life, which had invoked the clause to deny the payment

of death and dismemberment coverage to Prather’s survivor

on the ground that Prather’s death had not been the exclu

‐

sive result of an accident—it had also been the result of

“complications from surgical treatment.” Prather’s widow

brought suit “to recover benefits due to [her]” under the

plan. 29 U.S.C. § 1132(a)(1).

On July 16, 2013, Prather, age 31, had torn his left Achil

‐

les tendon playing basketball. He was operated on to repair

the torn tendon six days later. The surgery was uneventful

and he was discharged from the hospital the same day. He

returned to work and was reported as doing well in a fol

‐

low

‐ up visit to his surgeon on August 2, but four days later

he collapsed at work, went into cardiopulmonary arrest, and

died the same day as a result of a deep vein thrombosis

(blood clot) in the injured leg that had broken loose and

traveled through the bloodstream to a lung, thus becoming a

blood clot in the lung—that is, a pulmonary embolism—

which caused cardiac arrest and sudden death.

Sun Life’s position was and is that the pulmonary embo

‐

lism and ensuing death were consequences not of—at least

not entirely of—the accident to Prather’s Achilles tendon,

but of the surgery, and therefore was not covered by the in

‐

surance policy, which as we said covered only “bodily inju

‐

ries

... that result directly from an accident and independently

of all other causes .” The district court granted summary

judgment in favor of Sun Life, Prather’s widow appealed,

and we reversed, see Prather v. Sun Life & Health Ins. Co.

, 843

F.3d 733 (7th Cir. 2016). We reasoned that Sun Life had failed

to make any plausible showing that the surgery on Prather’s

ankle, rather than the accident that necessitated the surgery,No. 16

‐ 1861 3

had caused his death. We instructed the district court to en

‐

ter judgment in favor of the plaintiff, as in Senkier v. Hartford

Life & Accident Ins. Co.

, 948 F.2d 1050, 1052 (7th Cir. 1991).

Prather’s widow has now moved us to award her the at

‐ torneys’ fees (that is, to order Sun Life to reimburse her for

those fees), amounting to $37,170, that she incurred in her

successful suit against the insurance company. The suit had

been based on the Employee Retirement Income Security Act

of 1974 (ERISA), the federal law that sets minimum stand

‐

ards for certain private pension and health plans, in order to

provide financial protection for individuals enrolled in these

plans (as Jeremy Prather had been) and their survivors (Pra

‐

ther’s widow, in this case). See 29 U.S.C. § 1132(a)(1). Specif

‐ ically, she seeks the fees under section 1132(g)(1), which au

‐

thorizes a court in its discretion to “allow a reasonable attor

‐ ney’s fee and costs of action to either party,” provided the

party awarded the fee and costs had (the Supreme Court

said in Hardt v. Reliance Standard Life Ins. Co.

, 560 U.S. 242,

245 (2010)), “achieved some success on the merits.” The

plaintiff, Prather’s widow, achieved not some, but complete,

success on the merits of her suit. That makes it an easy case

for us to exercise discretion favorably to her, and thus award

her her attorneys’ fees and costs.

We are mindful that a number of judicial opinions em

‐

brace a “five factor” test for whether to award attorneys’ fees

and costs in cases such as this. They are “(1) the degree of

the offending parties’ culpability; (2) the degree of the ability

of the offending parties to satisfy an award of attorneys’ fees;

(3) whether or not an award of attorneys’ fees against the of

‐ fending parties would deter other persons acting under simi

‐

lar circumstances; (4) the amount of benefit conferred on4 No. 16

‐ 1861

members of the pension plan as a whole; and (5) the relative

merits of the parties’ positions. Raybourne v. CIGNA Life Ins.

Co. of New York

, 700 F.3d 1076, 1090 (7th Cir. 2012); see also

Jackman Financial Corp. v. Humana Ins. Co.

, 641 F.3d 860, 866

(7th Cir. 2011).

We have no information about factor 4, so let’s forget it.

All the other factors (four in number) favor the plaintiff in

this case: there is no doubt of Sun Life’s culpability (factor 1),

or of its ability to pay without jeopardizing its existence (it is

a multibillion dollar company) (factor 2); the award of attor

‐ neys’ fees against it is likely to give other insurance compa

‐

nies in comparable cases pause (factor 3); and a comparison

of the relative merits of the contending parties clearly favors

the plaintiff (factor 5). The score is 4 to 0 in favor of the

plaintiff. Prather’s widow doesn’t have the big pockets of the

insurance company and would have to pay her lawyer out

of whatever money she recovered from it. Even though she

had a meritorious claim, the insurance company denied it

without medical evidence and then put her through all the

hoops of litigation. Fee

‐ shifting under ERISA is entirely ap

‐ propriate for situations like this.

It remains to consider Sun Life’s challenge to the amount

of the award of attorneys’ fees ($37,170). We are persuaded

by its argument that 3.6 hours of the attorney’s work should

be subtracted because they were hours devoted to simple

administrative tasks such as preparing the table of contents

and appendix of the brief, and formatting the brief; 4.4 hours

incurred by failing to delegate portions of the research,

drafting, and editing of the brief to a more junior attorney;

and 2 hours for preparation for oral argument, which was

too much time given the lawyer’s experience in arguing inNo. 16

‐ 1861 5

the courts of appeals. The result of these adjustments is to

reduce the number of hours on which the $37,170 fee award

is based from 59 to 49, yielding (with a further adjustment,

reducing the attorney’s billing rate from $630 to $620, on the

ground that the $630 rate reflected an excessive rate increase

of 5 percent from his hourly rate of $600 in 2015) a total fee

award of $30,380—which is the amount we award the plain

‐

tiff.

So ordered.