United States District Court, D. Oregon
YELENA NIKOLAYCHUK, Personal Representative of the Estate of Igor Nikolaychuk, Plaintiff,
NATIONAL CASUALTY COMPANY, Defendant.
S. Zackheim Attorney for Plaintiff
E. Jones Selman Breitman LLP Attorney for Defendant
OPINION AND ORDER
Jelderks U.S. Magistrate Judge
to ORS §742.061 and Fed. R. Civ. Pro. 54(d), Plaintiff
moves for an award of attorney fees and costs. On November 8,
2018, pursuant to an October 16, 2018 jury verdict, this
Court entered Judgment against Defendant National Casualty
opposes Plaintiff's request for attorney fees. For the
reasons that follow, Plaintiff's motion for attorney fees
is granted with the modifications set forth below and
Plaintiff's request for costs is granted.
Yelena Nikolaychuk brought this wrongful death claim on
behalf of the estate of her deceased husband, Igor
Nikolaychuk, against Defendant National Casualty Company.
January 31, 2016, Mr. Nikolaychuk was operating a semi-truck
and trailer as an independent contractor for the truck's
registered owner, RMI Transport, LLC. RMI was the named
insured for underinsured motorist coverage issued by
Defendant National Casualty Company as part of an insurance
policy on the truck and trailer. Mr. Nikolaychuk stopped the
truck and trailer on the paved shoulder of icy westbound
interstate 84 near milepost 281 in Oregon for the purpose of
installing tire chains. As he was installing tire chains on
the rear driver's side trailer tire, Mr. Nikolaychuk was
struck and killed by an out of control westbound vehicle
which had liability insurance limits of $25, 000. Plaintiff,
on behalf of the Estate, sought underinsured motorist
coverage from Defendant.
Complaint was originally filed in Multnomah County Circuit
Court for the State of Oregon. It was removed to the U.S.
District Court for the District of Oregon on June 13, 2017.
Defendant then filed a motion to dismiss. Oral argument on
the motion was held and, in a Findings and Recommendation
dated September 21, 2017, this Court recommended denying
Defendant's motion to dismiss. That recommendation was
adopted by Judge Anna Brown in an Opinion and Order dated
October 30, 2017. A Rule 16 Conference was held on December
27, 2017. By January 3, 2018, all parties had filed full
consent to jurisdiction by a U.S. Magistrate Judge and a
five-day jury trial was scheduled for October 15, 2018.
subsequently filed a Motion for Summary Judgment and
Plaintiff filed a Motion for Partial Summary Judgment.
Extensive briefing was submitted on a number of complex and
novel issues pertaining to both uninsured/underinsured
motorist coverage and the damages cap under Oregon law. Oral
argument was held on August 14, 2018. In an Opinion and Order
dated August 16, 2018, this Court denied Defendant's
motion for summary judgment and denied in part and granted in
part Plaintiff's motion for partial summary judgment.
September 20, 2018, Plaintiff filed a motion to certify a
question to the Oregon Supreme Court. After a telephonic
conference, the motion was denied and the parties were
instructed to continue to prepare for the October 15, 2018
trial start date.
advance of trial, both parties submitted motions in limine.
Plaintiff filed a Proposed Pretrial Order and a Motion for
Leave to File an Amended Complaint, which this Court granted
after a telephonic conference on October 11, 2018. Both
parties submitted exhibit and witness lists and proposed jury
instructions. Trial began on October 15, 2018. Pursuant to
Oregon law, the case was submitted to the jury with no
reference to insurance limits or damages caps.
October 16, 2018, the jury returned a verdict in favor of
Plaintiff. The jury found total damages in the sum of $1,
911, 131.52. The verdict included $1, 200, 000.00 to
compensate the widow and the decedent's three children
for non-economic damages as well as $711, 131.52 in economic
damages for the decedent's Estate and Mrs. Nikolaychuk.
By Order and Judgment dated November 8, 2018, Plaintiff, as
personal representative of the Estate of Igor Nikolaychuk,
was awarded judgment, reduced due to insurance limits,
against Defendant National Casualty Company, in the amount of
$975, 000.00. Plaintiff was directed to distribute any net
proceeds collected as specified by the Court.
filed a Notice of Appeal on December 5, 2018. On December 6,
2018, Plaintiff filed a Motion for Attorney Fees and a Bill
of Costs. Plaintiff subsequently filed an Amended Motion for
Attorney Fees on December 10, 2018. Defendant filed its
Response to the Motion and Plaintiff filed a Reply. Currently
before the Court are Plaintiff's Amended Motion for
Attorney Fees and the submitted Bill of Costs.
attorney, Ivan Zackheim, seeks $172, 607.50 for 443.3 hours
of work performed on this case by him and two legal
assistants. Mr. Zackheim is requesting an hourly rate of $425
for his work, $100 per hour for work by one assistant, and
$150 per hour for the second assistant, who had obtained her
JD degree but was not yet admitted to the Oregon Bar.
Plaintiff also requests that a multiplier of 1.5 be applied
to the fee request. In support of Plaintiff's request for
fees, Mr. Zackheim submitted a Declaration and multi-page
summary setting forth the tasks performed and time spent by
him and his staff.
law governs a party's right to recover attorney fees in a
diversity action. Schulz v. Lamb, 591 F.2d 1268,
1273 (9th Cir. 1978). Plaintiff seeks to recover attorney
fees and costs pursuant to ORS §742.061, which provides:
if settlement is not made within six months from the date
proof of loss is filed with an insurer and an action is
brought in any court of this state upon any policy of
insurance of any kind or nature, and the plaintiff's
recovery exceeds the amount of any tender made by the
defendant in such action, a reasonable amount to be fixed by
the court as attorney fees shall be taxed as part of the
costs of the action and any appeal thereon.
purpose of Oregon's statute “allowing recovery of
attorney fees by claimants under insurance policies is to
encourage the settlement of such claims without litigation
and to reimburse successful plaintiffs reasonably for moneys
expended for attorney fees in suits to enforce insurance
contracts.” Chalmers v. Oregon Auto. Ins. Co.,
263 Or. 449, 452 (1972). The statute “was intended to
protect an insured who has suffered a loss from annoying and
expensive litigation. In other words, the statute seeks to
protect insureds from the necessity of litigating
their valid claims. It has no converse ...