United States District Court, D. Nebraska
ERIC D. HAYES, Plaintiff,
METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY, Defendant.
MEMORANDUM AND ORDER
Smith Camp, Chief United States District Judge.
matter is before the Court on three motions. Plaintiff, Eric
D. Hayes has moved for attorney's fees and costs (ECF No.
137). Defendant Metropolitan Property and Casualty Insurance
Company (Met) has moved under Federal Rules of Civil
Procedure 52(b) and 59(e) to alter or amend the Court's
Findings of Fact, Conclusions of Law, and Judgment (ECF No.
140), and to stay the judgment and taxation of costs (ECF No.
142). For the reasons discussed below, Met's motions will
be denied, and Hayes's motion will be granted in part.
home was destroyed by fire. Met investigated the fire as
Hayes's homeowner's insurance carrier, and ultimately
decided to void the homeowner's insurance policy ab
initio, after the expiration of the limitations period
in the policy. Hayes's breach-of-contract claim was
dismissed as untimely due to the twelve-month limitations
period in the policy, and his bad-faith claim proceeded to
trial before this Court, without a jury. The Court issued its
Findings of Fact and Conclusions of law on June 12, 2017 (ECF
No. 132). On the same day, the Court entered judgment for
Hayes in the amount of $493, 455.00, plus attorney's fees
(ECF No. 133). On June 21, 2017, Hayes moved for
attorney's fees and costs (ECF No. 137). On July 5, 2017,
Met moved to amend the Court's Findings of Fact,
Conclusions of Law, and Judgment (ECF No. 140), and to stay
the judgment and taxation of costs (ECF No. 142). On July 13,
2017, the Clerk of the Court taxed costs against Met in the
amount of $2, 115.44 (ECF No. 146.)
to Alter or Amend
Rule of Civil Procedure 52(b) provides that “[o]n a
party's motion filed no later than 28 days after the
entry of judgment, the court may amend its findings-or make
additional findings-and may amend the judgment accordingly.
The motion may accompany a motion for a new trial under Rule
59.” Fed.R.Civ.P. 52(b). Rule 52(b)'s
“purpose is to permit the correction of any manifest
errors of law or fact that are discovered, upon
reconsideration, by the trial court. Under the rule, the
trial court is the first recourse for the correction of
errors.” National Metal Finishing Co., Inc. v.
BarclaysAmerican/Commerical, Inc., 899 F.2d 119, 123
(1st Cir. 1990).
59(e) allows for motions to alter or amend judgments.
Fed.R.Civ.P. 59(e). The United States Supreme Court has
stated that like Rule 52(b), Rule 59(e) “was adopted to
make clear that the district court possesses the power to
rectify its own mistakes in the period immediately following
the entry of judgment.” White v. New Hampshire
Dept. of Emp. Sec., 455 U.S. 445, 450, 102 S.Ct. 1162,
71 L.Ed.2d 325 (1982). Some courts distinguish motions under
Rule 52(b) from motions under Rule 59(e) by the relief
sought. See, e.g., Sherman v. Kasotakis,
314 F.Supp.2d 843, 877 (N.D. Iowa 2004) (stating when the
crux of the party's motion “appears to revolve
around the correctness, or completeness, of the judgment
rather than a plea . . . to make additional findings . .
.” the motion ought to be brought pursuant to Rule
59(e)) (citing Norman v. Arkansas Dept. of Educ., 79
F.3d 748, 750 (8th Cir. 1996) (additional citations
omitted)). District courts have broad discretion in their
determinations of whether to grant or deny Rule 59(e)
motions. These motions “serve the limited function of
correcting manifest errors of law or fact . . . .”
Lowry ex rel. Crow v. Watson Chapel School Dist.,
540 F.3d 752, 761 (8th Cir. 2008) (internal citation
starting point in determining attorney fees is the lodestar,
which is calculated by multiplying the number of hours
reasonably expended by the reasonable hourly rates.”
Fish v. St. Cloud State Univ., 295 F.3d 849, 851
(8th Cir. 2002). “The district court should then take
account of other considerations that may lead [it] to adjust
the fee upward or downward, including the important factor of
the results obtained.” Hensley v. Eckerhart,
461 U.S. 424, 434 (1983) (internal quotations omitted).
“In considering how the ‘results obtained'
should affect attorney's fees, courts are to consider two
questions. First, did the plaintiff fail to prevail on claims
that were unrelated to the claims on which he succeeded?
Second, did the plaintiff achieve a level of success that
makes the hours reasonably expended a satisfactory basis for
making a fee award? Claims are related, and hence deserving
of compensation, if they involve a common core of facts or
are based on related legal theories.” Dindinger v.
Allsteel, 853 F.3d 414, 429 (8th Cir. 2017), quoting
Emery v. Hunt, 272 F.3d 1042, 1046 (8th Cir. 2001),
and Hensley, 461 U.S. at 435 (internal quotations
award of attorney fees involves consideration of such factors
as the nature of the case, the services performed and results
obtained, the length of time required for preparation and
presentation of the case, the customary charges of the bar,
and general equities of the case.” ACI Worldwide
Corp. v. Baldwin, Hackett & Meeks, Inc., 896 N.W.2d
156, 198 (Neb. 2017), citing Sitz v. Sitz, 275 Neb.
832, 749 N.W.2d 470 (2008).
Rev. Stat. § 44-359 allows a successful plaintiff to
recover attorney's fees when the plaintiff “brings
an action upon any type of insurance policy.” In the
Court's Findings of Fact and Conclusions of Law, the
Court stated that “pursuant to Neb. Rev. Stat. §
44-359, and in accordance with the Nebraska Supreme
Court's rationale for providing economic damages when an
insurer is found to have acted in bad faith, as outlined in
Ruwe, Hayes should be awarded reasonable
attorney's fees.” (ECF No. 132 at 13-14, citing
Ruwe v. Farmers Mut. United Ins. Co., Inc., 469
N.W.2d 129, 135 (Neb. 1991).)
Nebraska Supreme Court has not made an explicit determination
as to whether a plaintiff is entitled to an award of
attorney's fees if the plaintiff succeeds on a bad-faith
claim against an insurer, but not on a breach-of-contract
claim. In Rod Rehm, P.C. v. Tamarack Amer., the
Nebraska Supreme Court held that “an insurance policy
beneficiary who successfully sues his or her insurance
company is entitled to a reasonable attorney fee . . .
.” 623 N.W.2d 690, 700 (Neb. 2001). Nothing in the
Nebraska Supreme Court's holding required the successful
beneficiary to succeed in a breach-of-contract claim in order
to recover attorney's fees. In Hemenway v. MFA
LifeIns. Co., 318 N.W.2d 70, 76 (Neb. 1982),
the Nebraska Supreme Court stated “the form of the
action is not controlling.” This Court is mindful of
the Eighth Circuit's analysis in Lienemann v. State
Farm Mut. Auto Fire & Cas. Co., 540 F.2d 333 (8th
Cir. 1976), finding the attorney fee provision in Neb. Rev.
Stat. § 44-359 inapplicable in a tort-based action where