Free Objection - District Court of Arizona - Arizona

DEFENDANT/COUNTERPLAINTIFF LUMBERMENS MUTUAL CASUALTY COMPANY'S STATEMENT OF ALL DISPUTED ISSUES OF MATERIAL FACT IN COMPLIANCE WITH LOCAL RULE 54.2(f) Defendant/counter-plaintiff Lumbermens Mutual Casualty Company ("LMC"), in compliance with Local Rule 54.2(f), hereby identifies the following disputed issues of material fact regarding plaintiffs' motion for attorneys' fees. 1. 2. 3. 4. 5. 6. 7. LMC disputes plaintiffs' statement that the fees listed in the fee bills attached to plaintiffs' memorandum total $489,745.14. Instead, the correct total is $477,236.75. The allegation that: "U-Haul is eligible for an award of its attorney fees pursuant to ARS § 12-341.01(A), because its litigation arose from insurance contracts." (pp. 1, 2) The allegation that: "U-Haul meets each of Local Rule 54.2's requirements governing requests for attorneys' fees." (p. 2) The allegation that: ". . . LMC refused to pay the full coverage limits afforded by its policies. . ." (p. 2) The allegation that: ". . . LMC engaged in a 'scorched-earth' campaign of discovery and motion practice. . ." (p. 2) The allegation that: ". . . The court found that documentation of the entirety of the coverage claim by U-Haul under the RU policies was available to LMC." (p. 3) The allegation that: "Because plaintiffs were the successful parties in this contested action arising out of insurance contracts, they are eligible for an award of their entire fees incurred in achieving their successful result. . ." (p. 4) The allegation that: "LMC, therefore, has conceded that this is a matter in which attorneys' fees may be awarded to the prevailing party." (p. 4) The allegation that: "Inasmuch as U-Haul is now the successful party in this litigation, this court should enter an award of reasonable attorneys' fees in its favor, in the amount requested." (pp. 4, 5) The allegation that: "Each of the Associated Indemnity factors militates in favor of an award of attorneys' fees in favor of U-Haul." (p. 5) The allegation that: "LMC's defenses and counterclaims were not meritorious." (p. 5) The allegation that: "LMC's defenses and counterclaims were erroneous as a matter of law, as the court found in granting partial summary judgment in favor of U-Haul and Republic Western and in its post-trial order." (p. 5)

8. 9.

10. 11. 12.

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13. 14. 15. 16. 17. 18. 19. 20.

The allegation that: ". . . The court ruled that the true nature of the RU policies was readily available to LMC. . ." (p. 5) The allegation that: "In the circumstances, it has been determined that LMC pursued erroneous defenses from the inception of the case." (p. 5) The allegation that LMC pressed meritless defenses and claims prior to and during the litigation. (p. 5) The allegation that: "Plaintiffs made extensive efforts to resolve this dispute without litigation." (pp. 5, 6) The allegation that LMC ". . . posted a combined statutory surplus of $173.6 million at year-end 2006." (p. 6) The allegation that LMC authorized "its attorneys to file numerous meritless motions . . ." (p. 6) The allegation that this case involved "fairly discrete legal issues." (p. 6) The allegation that: "LMC pursued a panoply of unsuccessful defenses and counterclaims, filed numerous unnecessary and untimely motions, and pursued endless objections. . ." (p. 6) The allegation that: "this litigation did not present novel claims or defenses." (p. 6) The allegation that: "An award of attorneys' fees would not discourage prospective litigants from litigating tenable claims." (p. 7) The allegation that: ". . . An award of attorneys' fees will deter future litigants from pursuing defenses and counterclaims, where, as here, they lack a substantial legal and factual basis." (p. 7) The allegations that the amounts claimed by plaintiffs' attorneys are reasonable. As stated in LMC's chart of objections, it denies the reasonableness of the fees to the extent that the work was duplicated by plaintiffs' various attorneys and/or was performed on matters unrelated to the prosecution of plaintiffs' claims or opposition to LMC's defenses including, but not limited to, work regarding claims against Aon, work regarding other insurers, and responses to auditors. The allegation that LMC's post-trial motion for amended and additional findings, amendment of judgment, and for a new trial, is "unmeritorious." (p. 7) The allegation that the total fees claimed is $489,745.14. (pp. 7, 8) The actual total is $477,236.75.

21. 22. 23.

24.

25. 26.

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The allegation that counsel for U-Haul have exercised judgment in billing this sum, insuring that all work for which U-Haul was billed was warranted and not duplicative. (p. 8). The allegation that: "LMC continues to unnecessarily prolong the litigation process through its filing of duplicative motions." (p. 8) The allegation of "scorched-earth" tactics employed by LMC, the complexity of the spurious legal positions asserted by LMC. . ." (p. 8) The allegation that there is an "absence of merit in LMC's defenses and counterclaims..." (p. 8) The allegation that LMC "denied its insured's claim for coverage on the ground that it either did not understand the coverage provided by insurance policies residing below its excess policies . . . or failed/refused to read those (RU) policies." (p. 8) The allegation that LMC's estoppel defense was "dubious." (p. 9) The allegation that "the leading decision of the Arizona Supreme Court, Darner Motor Sales, Inc. v. Universal Underwriters Ins. Co., . . . actually cast significant doubt as to whether an Arizona court would even permit that equitable doctrine to be asserted by an insurer." (p. 9) The allegation that: "The trial itself presented the court with a snapshot of the type of litigation tactics that U-Haul's counsel was compelled to endure from the outset of the litigation. . ." (p. 9) The allegation that: "Rather than stipulate as to the amount of damages that U-Haul had suffered, LMC elected to proceed with its day in court by essentially hoping that the court would buy into any of a series of shotgun objections to the admissibility of U-Haul's damage evidence, as evidenced by objections to both live testimony from plaintiffs' witnesses and to the introduction of business records reflecting actual payment of loss and LAE on the underlying claims." (p. 9) The allegation that LMC's "conscious litigation tactics" "clearly increased the cost to UHaul of collecting insurance proceeds to which it was entitled." (p. 9) The allegation that: "At the end of the day, LMC succeeded only in causing U-Haul more harm, by requiring U-Haul's attorneys to spend countless, unnecessary hours to address meritless positions." (p. 9) The allegation that: "LMC lacked any viable defense to U-Haul's claims for coverage." (p. 9) The allegation that: "LMC made strategic decisions in this litigation to engage in substantial motion practice and voluminous discovery on issues of dubious merit. . ." (p. 9)

28. 29. 30. 31.

32. 33.

34.

35.

36. 37.

38. 39.

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The allegation that: ". . . the legal principles relied upon by the court in granting UHaul's motion for summary judgment and in granting judgment in favor of U-Haul as a result of the bench trial were not novel. . ." (p. 10) The allegation that: ". . . U-Haul's fees were reasonable in the circumstances." (p. 12)

41.

8E4B.3F3 #1011

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