                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________
                                                                 FILED
                                   No. 05-12403        U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                            ________________________          July 05, 2006
                                                          THOMAS K. KAHN
                      D.   C. Docket No. 02-21642-CV-KAM        CLERK

JEFFREY D. KAMLET,

                                                                  Plaintiff-Appellee
                                                                   Cross-Appellant,

                                      versus

HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY,

                                                              Defendant-Appellant
                                                                  Cross-Appellee.
                           ________________________

                  Appeals from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                  (July 5, 2006)

Before TJOFLAT, ANDERSON and PRYOR, Circuit Judges.

PER CURIAM:

      Plaintiff Jeffrey Kamlet, a participant in an employee benefit plan sponsored

by his employer, brought this action against defendant Hartford Life and Accident
Insurance Company, for alleged violations of the Employee Retirement Income

Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. § 1001 et seq. Following a

bench trial, the district court awarded Kamlet $ 31,008.45, consisting of benefits

and prejudgment interest. Hartford appealed that judgment to the Eleventh Circuit,

which affirmed the district court. Kamlet then filed a petition for attorneys’ fees,

seeking $127,184.50 in fees and $1,825.85 in taxable costs. The district court

awarded Kamlet $87,241.40 in attorneys’ fees and $1,575.85 in costs.

      Hartford now appeals this award of attorneys’ fees. Kamlet cross-appeals,

asserting that the district court erred when it calculated his attorneys’ fees at

historical, rather than current rates.

                                  I. BACKGROUND

      In 1995, Kamlet applied for long-term disability benefits from Hartford.

Kamlet began receiving monthly payments in July 1995. Between 1996 and 2000,

Hartford made a series of deductions from Kamlet’s benefits to adjust for income

he earned from part-time employment. The amount of these deductions was

$25,700. Kamlet disagreed with these deductions and, in November 2000, he hired

an attorney to represent him in his discussions with Hartford regarding the

disagreement. After some negotiation, Hartford agreed to calculate the benefits in

the manner sought by Kamlet, and to make the calculation retroactive. Kamlet

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offered to settle the claim for the benefit amount, plus $16,000 in attorneys’ fees he

had incurred in the negotiations. Hartford refused to pay the attorneys’ fees.

      Kamlet then sued Hartford in federal court, asserting claims for the benefits

and attorneys’ fees. Hartford defended itself on the merits, arguing that its

deductions were valid. The trial court ruled for Kamlet on the deductions issue and

awarded Kamlet the benefits he sought.

      Hartford argues that Kamlet should not be rewarded with almost $90,000 in

attorneys’ fees when he refused to settle a $25,000 benefits dispute. Hartford

argues that ERISA is clear that pre-litigation attorneys’ fees are not recoverable

and that this rule encourages settlement. Hartford argues that Kamlet’s sole

purpose in filing his lawsuit was to seek fees to which he had no right. Hartford

seems to make two arguments: 1) Kamlet is not entitled to pursue attorneys’ fees

because he forced the litigation by pursuing non-recoverable pre-litigation fees and

refusing Hartford’s offer of full benefits; and 2) even if Kamlet can pursue

attorneys’ fees, the district court abused its discretion in awarding them in this case

because it misapplied this Circuit’s five-factor test for awarding attorneys’ fees.

                           II. STANDARD OF REVIEW

      We review the district court’s award of attorneys’ fees for abuse of

discretion. Sierra Club v. Hankinson, 351 F.3d 1358, 1361 (11th Cir. 2003).

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                                       III. ANALYSIS

A. Kamlet’s Pursuit of Pre-Litigation Attorneys’ Fees

          Hartford asserts that Kamlet’s bad faith conduct is a sufficient basis for

reversing the district court’s award of attorneys’ fees. Hartford asserts that in these

circumstances, the court need not even consider the usual five-factor test for

awarding attorneys’ fees. Hartford argues that Kamlet should not be rewarded with

almost $90,000 in attorneys’ fees when he refused to settle a $25,000 benefits

dispute. Hartford argues that ERISA is clear that pre-litigation attorneys’ fees are

not recoverable and that this rule encourages settlement. Hartford argues that

Kamlet’s sole purpose in filing his lawsuit was to seek fees to which he had no

right.1

          As the district court pointed out, Hartford’s problems could have been

avoided if Hartford actually had tendered the benefits it claimed it was willing to

pay Kamlet. Hartford could have given the money to Kamlet, or deposited it in a

court escrow fund. At that point, the litigation would have consisted solely of

Kamlet’s claims for pre-litigation attorneys’ fees. Instead, Hartford opted to litigate

the entire case. Hartford did not pay Kamlet his benefits; rather, in court, Hartford



          1
         We cannot conclude that the district court was clearly erroneous in finding that Kamlet
did not act in bad faith in requesting attorneys’ fees during the administrative proceedings.

                                                4
argued that it owed Kamlet no additional benefits at all. Hartford fought Kamlet’s

action on all fronts, as it was certainly entitled to do. Hartford, however, cannot

seek refuge in a claim that it would have paid all the benefits up front. Hartford did

not do this; in court, Hartford challenged Kamlet’s right to any additional benefits.

If Hartford had won, it would have paid no benefits to Kamlet. Hartford cannot

hide from the potential negative consequences of this full litigation by asserting it

was willing to pay the benefits before litigation commenced. Hartford could have

conceded the benefits issue but, instead, pursued full litigation. Again, Hartford

was entitled to pursue full adjudication of all issues, but it must accept the risks of

that litigation, which include the attorneys’ fees provisions of ERISA.

      In this respect, Hartford’s reliance on Anderson v. Procter & Gamble Co.,

220 F.3d 449 (6th Cir. 2000) is misplaced. In Anderson, the plaintiff and her plan

had a dispute about benefits, but then reached an agreement. The plaintiff then sued

in federal court for attorneys’ fees. The Sixth Circuit held that the plaintiff could

not recover attorneys’ fees for services in the administrative proceedings. In

Anderson, however, the only issue was the attorneys’ fees. The merits of plaintiff’s

benefit claim were not litigated. In the instant case, Hartford asserted before the

court that it had no obligation to pay Kamlet additional benefits. Full litigation of

Kamlet’s claim ensued. After this full litigation, the district court determined that

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Kamlet’s litigation expenses should be covered by Hartford. Hartford could have

availed itself of the Anderson position by settling Kamlet’s benefit claim and then

addressing only the issue of attorneys’ fees in court. Hartford, however, is

attempting to create a win-win situation. If it had prevailed on the merits, it would

have paid Kamlet no benefits. However, having lost on the merits, Hartford now

wishes to insulate itself from paying Kamlet’s litigation-based attorneys’ fees by

following Anderson. Hartford, however, did not make the same commitment to a

position (paying benefits) that the defendant in Anderson did. Hartford quotes the

Anderson court’s statement that “no court has ever held that a plaintiff who settles

all of her ERISA claims at the administrative stage and files suit only to recover

costs is permitted to recover attorneys’ fees under § 1132(g).” Id. at 455. In this

case, however, the parties did not settle the claims at the administrative phase and

Hartford continued to dispute the benefits.

      Accordingly, we conclude that Hartford’s initial offer to settle Kamlet’s

benefit claim did not bar Kamlet from pursuing attorneys’ fees after he litigated the

full claim in court.

B. The Guidelines for Exercising Discretion to Award Attorneys’ Fees

      Hartford also asserts that the district court abused its discretion in awarding




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fees under this Circuit’s guidelines for awarding attorneys’ fees. In awarding fees, a

court considers such factors as: 1) the degree of the opposing party’s bad faith or

culpability; 2) the ability of the opposing party to satisfy an award of attorneys’

fees; 3) whether an award of attorneys’ fees against the opposing party would deter

other persons acting under similar circumstances; 4) whether the party requesting

attorneys’ fees sought to benefit all beneficiaries and participants of an ERISA plan

or to resolve a significant legal question involving ERISA itself; and 5) the relative

merits of the parties’ positions. Dixon v. Seafarers’ Welfare Plan, 878 F.2d 1411,

1412 (11th Cir. 1989). Hartford challenges the district court’s findings on the first

and third factor.

      The first consideration is whether Hartford acted in bad faith in defending its

position in Kamlet’s lawsuit. Hartford argues that this first factor is the most

important. That may be true, but we have squarely rejected the argument that the

absence of bad faith is dispositive and requires denial of attorneys’ fees. Wright v.

Hanna Steel Corp., 270 F.3d 1336, 1345 (11th Cir. 2001). Although the district

court found that Hartford may not have acted in bad faith, the district court found

that Hartford was “more culpable” than Kamlet. We cannot conclude that this

finding of fact by the district court is clearly erroneous. And there is ample support

in the record to support the district court’s finding of greater culpability on the part

                                           7
of Hartford. Hartford’s position on the merits was pretty clearly inconsistent with

the provisions of the summary plan description.

       The third factor, deterrence, is intertwined in the issue of bad

faith/culpability. To the extent that Hartford is more culpable for adopting its

position on the merits, then an award of attorneys’ fees may deter these types of

actions. At the very least, we disagree with Hartford that it is behavior like

Kamlet’s that should be deterred. Until Hartford actually paid Kamlet his benefits,

Kamlet was justified in suing for those benefits.

       On the other factors, the district court found that two favored Kamlet, while

one did not. The district court found that Hartford had the ability to satisfy an

award of attorneys’ fees. Kamlet also benefits from the consideration of the relative

merits of the parties’ positions. As the district court noted, it ruled in Kamlet’s

favor on the merits. We agree that Kamlet had the stronger position in the

litigation. The remaining factor does not favor Kamlet, as he was not seeking to

benefit all beneficiaries or participants in an ERISA plan.

       Based on our consideration of all five factors, we conclude that the district

court did not abuse its discretion in awarding attorneys’ fees to Kamlet for the

litigation.




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C. Kamlet’s Cross-Appeal

      The district court awarded Kamlet attorneys’ fees based on the rates billed,

rather than current rates. The district court believed that the attorneys’ fees, as

billed, adequately compensated Kamlet. We cannot conclude that the district court

abused its discretion in this case.

AFFIRMED.2




      2
          Hartford’s request for oral argument is DENIED.

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