Factors Courts Consider and How to Frame the Request
One of the most misunderstood aspects of ERISA litigation is attorney fee recovery.
Unlike many insurance disputes governed by state law, ERISA does not automatically award attorney fees to the prevailing party. Instead, courts have discretion to award “reasonable attorney’s fees and costs” under 29 U.S.C. § 1132(g)(1).
In life insurance cases, that discretion can make a meaningful difference. Fee recovery can determine whether a wrongfully denied beneficiary is made whole or left absorbing substantial litigation costs.
Here is how courts analyze fee requests and how they are typically framed in successful ERISA life insurance cases.
When you are facing a denied ERISA claim we are here for you. Look at our ERISA Fact Sheet for more information.
The Threshold Requirement: Some Degree of Success
Before a court even considers awarding fees, the claimant must achieve “some degree of success on the merits.”
This does not always require a full trial victory. Courts may consider:
• Reversal of a denial and entry of judgment for benefits
• A remand to the plan administrator based on significant procedural errors
• A favorable settlement following substantive litigation progress
A purely technical or procedural win with no substantive impact may not qualify.
The Five Factors Courts Commonly Apply
Many courts apply a five factor test when deciding whether to award attorney fees in ERISA cases. While phrasing varies slightly by jurisdiction, the core considerations are similar.
1. The Degree of the Opposing Party’s Culpability or Bad Faith
Courts examine whether the insurer’s conduct was merely incorrect or whether it reflected something more serious.
Examples that may support fee awards include:
• Ignoring clear plan language
• Failing to consider key evidence
• Misrepresenting the administrative record
• Violating ERISA claims procedure regulations
A showing of bad faith strengthens a fee request, but bad faith is not required.
2. The Ability of the Opposing Party to Satisfy a Fee Award
Insurers in group life cases are typically large, well funded entities. Courts often consider whether awarding fees would impose undue hardship.
In most ERISA life insurance disputes, this factor favors the beneficiary.
3. Whether a Fee Award Would Deter Similar Conduct
Courts consider whether awarding fees would discourage improper claims handling in the future.
If the case reveals systemic procedural violations or recurring denial practices, deterrence becomes a strong argument.
4. Whether the Claimant Sought to Benefit All Participants or Resolve a Significant Legal Question
Fee awards are more likely when a case clarifies important ERISA issues or improves plan administration for others.
However, even individual benefit claims can satisfy this factor if they expose broader compliance failures.
5. The Relative Merits of the Parties’ Positions
Courts evaluate the strength of each side’s legal arguments.
If the insurer’s interpretation of the plan was strained or contradicted by the record, this factor can weigh heavily in favor of fees.
How to Frame a Fee Request
Attorney fee petitions in ERISA cases are not automatic. They require careful framing.
Successful fee motions often emphasize:
• The strength of the merits ruling
• The specific errors in the denial process
• The insurer’s procedural violations
• The broader impact of the court’s decision
• The reasonableness of the requested hours and rates
Documentation is critical. Courts review billing records, hourly rates, and the proportionality of fees to the benefit recovered.
In life insurance cases involving substantial policy proceeds, courts are often more receptive to full fee awards when the denial was clearly unsupported.
The Lodestar Method
Most courts calculate attorney fees using the lodestar method.
This involves:
• Determining a reasonable hourly rate
• Multiplying that rate by the number of reasonably expended hours
• Adjusting only in rare circumstances
Excessive, duplicative, or unnecessary time entries may be reduced. Clear, well organized billing records strengthen the request.
Fees After Remand
An important question in ERISA life insurance litigation is whether fees are available after a court remands the case to the plan administrator.
In many jurisdictions, a remand based on substantive procedural errors may qualify as sufficient success on the merits to support a fee award, even before final payment of benefits.
This can significantly affect litigation strategy.
Why Fee Recovery Matters in Life Insurance Cases
ERISA does not provide punitive damages or emotional distress damages. The primary remedy is recovery of benefits due under the plan.
Attorney fee recovery helps level the playing field when beneficiaries are forced to litigate against large insurers.
Without fee shifting, many wrongfully denied claims would be economically impractical to pursue.
The Bottom Line
Attorney fee recovery in ERISA life insurance cases is discretionary, but far from rare.
Courts look at culpability, deterrence, relative merits, and overall fairness when deciding whether to award fees. A well framed fee petition supported by detailed documentation can make a substantial difference in the final outcome.
In wrongful life insurance denials governed by ERISA, attorney fees are not just an afterthought. They are often an essential part of fully correcting the harm caused by an improper denial.