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Nikolaychuk v. National Casualty Co.

United States District Court, D. Oregon

April 4, 2019

YELENA NIKOLAYCHUK, Personal Representative of the Estate of Igor Nikolaychuk, Plaintiff,

          Ivan S. Zackheim Attorney for Plaintiff

          Adam E. Jones Selman Breitman LLP Attorney for Defendant


          John Jelderks U.S. Magistrate Judge

         Pursuant 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 Company.

         Defendant 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.


         Plaintiff Yelena Nikolaychuk brought this wrongful death claim on behalf of the estate of her deceased husband, Igor Nikolaychuk, against Defendant National Casualty Company.

         On 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.

         The 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.

         Defendant 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.

         On 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.

         In 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.

         On 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.

         Defendant 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.


         Plaintiff's 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.

         I. Attorney Fees

         State 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.

ORS §742.061(1)

         The 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 ...

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