In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐1861
LEE ANN PRATHER,
Plaintiff‐Appellant,
v.
SUN LIFE AND HEALTH INSURANCE COMPANY (U.S.),
Defendant‐Appellee.
____________________
Appellant’s Petition for Award of Attorneys’ Fees
____________________
MARCH 30, 2017
____________________
Before WOOD, Chief Judge, and POSNER and WILLIAMS,
Circuit Judges.
POSNER, 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 for
2 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 on
4 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 in
No. 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.