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Plummer v. Hartford Life Insurance Co.

March 15, 2007


The opinion of the court was delivered by: Judge Thomas M. Rose


This is an ERISA action brought by Robin Plummer ("Plummer"), a plan participant, for reinstatement of long-term disability benefits under a group long-term disability policy provided by Plummer's former employer. Plummer was initially granted long-term disability benefits by Continental Casualty Company ("CNA") who administered the long-term disability policy until late 2003. In late 2003, Defendant The Hartford Life Insurance Company ("Hartford") assumed responsibility for administering the long-term disability policy. Hartford terminated Plummer's long-term disability benefits in February of 2005. Plummer unsuccessfully appealed to Hartford and subsequently filed the Complaint that is the subject of this action.

Based upon the Briefs of the Parties, the Administrative Record and a de novo review, this Court determined that Plummer was entitled to long-term disability benefits. Hartford was ordered to provide long term disability benefits to Plummer for as long as Plummer remains disabled under the terms of the long-term disability policy. Plummer was given until not later than thirty days following entry of the Order granting her benefits to submit a motion requesting attorneys' fees and other benefits to which she may be entitled. It is this motion that is now before the Court.

Plummer's Motion for Attorney Fees and Costs (doc. #22) was timely filed and is now fully briefed. The standard of review will first be set forth followed by an analysis of Plummer's motion.


Plummer's action is for recovery of benefits under an ERISA plan. The district court has discretion to award reasonable attorney's fees and costs to either party in such an action. 29 U.S.C. § 1132(g)(1).

Courts in the Sixth Circuit use the five-factor King test to assess whether attorney's fees should be awarded. Moon v. Unum Provident Corp., 461 F.3d 639, 642 (6th Cir. 2006). The five factors are: (1) the degree of the opposing party's culpability or bad faith; (2) the opposing party's ability to satisfy an award of attorney's 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. Id. (citing First Trust Corp. v. Bryant, 410 F.3d 842, 851 (6th Cir. 2005)).

There is no presumption that attorney's fees will be awarded. Id. at 643. Further, no single factor is determinative, the factors are not statutory and the factors are typically not dispositive. Id. Finally, a panel of the Sixth Circuit has held that ERISA does not authorize recovery of attorney's fees for work performed during the administrative exhaustion phase of a benefits proceeding. Anderson v. Procter & Gamble Co., 220 F.3d 449, 456 (6th Cir. 2000); see also Cann v. Carpenters' Pension Trust Fund for Northern California, 989 F.2d 313 (9th Cir. 1993).


Plummer now seeks an award of attorney's fees in the amount of $15,436.50 and costs in the amount of $250.00. (Doc. #22.) The amount for attorney's fees includes $609.75 for preparation of a reply brief.

Hartford responds that Plummer is entitled to a reasonable amount of attorney's fees and costs but is not entitled to attorney's fees for services that were apparently rendered in the course of Plummer's administrative appeal to Hartford. The analysis of Plummer's request begins with a discussion of each of the King factors.

Degree of Hartford's Culpability Or Bad Faith

This Court found that Plummer is both physically and psychologically disabled in accordance with the applicable policy and that Hartford's decision to terminate Plummer's long-term disability benefits was not well founded. In terminating Plummer's benefits, Hartford relied upon at least three flawed medical opinions and upon Plummer's activity in video tapes that did not represent the activity required to perform Plummer's occupation. Plummer had been found to be disabled by several doctors, the Social Security Administration and CNA, Hartford's predecessor.

Also, in the process of arguing to the Court, Hartford made several misstatements of the law or facts including: the law regarding the standard of review, the Policy requirements, the existence of an annual review process, the name of an individual that allegedly witnessed the surveillance, the absence of evidence in the Administrative Record supporting a finding of disability, the length of time Plummer is seen running errands in the video. Hartford also provided an incomplete administrative record.

On the basis of these findings, Hartford's conduct in this case was, at best, highly culpable. The first relevant King factor weighs heavily in favor of an ...

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