*1 judgment will vacate the recovery impor- is low but litigation. If the remand these implicated, interests are to counsel fees and governmental tant court as might justified. fee be a direction that the dis- then a substantial with proceedings run-of-the-mill, If, however, pro- the case is attorney’s enter an fee award trict court for the only duces minimum benefits and $10,200 to the uncontested in addition the same fee reduc- then prevailing party, in favor expenses. award of employed by compe- tion that would be a claim will be plaintiff ERISA should adversary tent cases practitioner affirmed. mere the district court. The applied by be by statute does

fact that a fee is authorized extravagant to set empower the courts word disproportionate key

or fees. The is that means in relation to

“reasonable” and litigation. “Billing judgment”

the main is responsi-

a consideration well known bar; when the disappear

ble it should setting statutory courts are fees. KUCERA, Appellant, Regina S. It should not to remind the necessary be bar that restraint is in its own best interest. LIFE INSURANCE METROPOLITAN legislative bodies that authorize fees CO. may undertake to limit them as well.6 In No. 83-5002. moderation, insisting on the courts do not bar, public disserve the but reassure Appeals, United Court of States and, that excesses will not countenanced Third Circuit. therefore, legislation ill-advised regulatory 12, 1983. unnecessary. Argued Sept. is Decided Oct. IV Measured against precepts, these a of law

having concluded that as matter

the evidence was insufficient a justify lodestar, nearly

bonus of over the we 100% authorizing attorney legislatures might Indeed the statutes fees Modern undertake agencies exercising regulate the United States and federal novel fees would not be already hourly have set maximum limits. authority. Jersey legislature In the New Equal Act, 96-841, Access Justice Pub.L. No. Fees, Regulate providing a Act to enacted the II, (codified title 94 Stat. 2325 at 5 § U.S.C. attorney’s fees. For schedule of maximum 2412). and 28 U.S.C. Fees in excess of § pleading, preparation plea $.70 was of a or per $75.00 hour are not to be awarded allowed; case, arguing trying $2.00. for special absence of circumstances. 5 U.S.C. Pleas, Pennsylvania’s fees of Common Court 504(b)(l)(A)(ii); U.S.C. § every prose- suit were fixed in 1795 at 2412(d)(2)(A)(ii). Attorneys handling tort re- § coveries filing judgment. For a suit and enter- cuted to government Fed- settled, ultimately ing appearance in a case eral Torts Claims Act are limited to 25% passed An $1.67. Delaware the amount was settlement, judgment or of a and those 20% Establishing Regulating Fees in Act for charge higher who or receive amounts are sub- subsequent charge pleadings for all 1793. The ject to criminal sanctions. 28 U.S.C. § line, per twelve $.01 to the declaration was nearly ago The scale set decades two $.40; line; writ, per drawing a words under the Criminal Justice Act of Court, every appeal Orphans 3006A(d) (1976), U.S.C. is conceded to be included These fees are of those only partial compensation, nonetheless has but original in the statutes of the thirteen colonies. today been so devastated inflation that Chroust, Legal The Rise of the Profession A. goal set the time of its fails to meet the America, (Univ. 252-58 of Oklahoma Press Berger, At- enactment. See “Court Awarded 1965). ‘Reasonable’?”, torneys What Fees: 312-13 n. 131 U.PA.L.REV. *2 SEITZ, Judge,

Before Chief and GIB- ROSENN, Judges. and Circuit BONS THE COURT OPINION OF GIBBONS, Judge: Circuit diversity Regina In this case removed Kucera, a in a life insur- beneficiary named a judg- ance appeals Life ment Insur- favor Summary judgment was Company. ance on that suit granted ground the sole on was time applicable to six-year statute of limitations 42 Pa.Cons.Stat.Ann. actions. 5527(2) (Purdon 1981). The trial court held that action was time barred in September, while Mrs. Kucera’s com- plaint filed on December 1981. Be- Mrs. Kucera’s cause action as a not arise until death of did the named re- insured on we verse, proceedings. and remand for further Kucera, an employee Metropoli-

Glenn applied a Company, tan Life Insurance $50,000 on term life insurance March Following an examination of Mr. Metropolitan’s Kucera a home physician, 1,May on 1974. It office issued a following day Metropoli- was mailed the office, where Mr. Kucera McKeesport tan’s it on employed. May He received and in his desk. Kucera in- kept through pay- tended pay deduction payroll roll deduction. The first Meanwhile, was made on June however, Kucera was hos- from the pitalized. hospi- his release Upon tal, completed on June notifying Metropoli- Metropolitan Form 074 $26.50, hospitalization, tan of He premium. the amount of the initial August, hospi- but was returned work again September talized October. continued, Meanwhile deductions October, aggregating, by Metropolitan, September of 1974 based in the Form which information Love, P.A., Pitts- Quinn, & John E. Sikow June, Kucera had declined furnished burgh, Pa., appellant. requested “place” Jones, McKeesport Metropoli- to return it. Reed Smith & office Shaw Craig W. check for Pa., appellee. tan also sent Kucera a McClay, Pittsburgh, designate a new Own- was in The Owner While Kucera cashed. which was Contingent designate change was removed from er and hospital will, if Contingent Owner to the home office. Owner. The and returned his desk in the event nonpay- living, defenses of become Owner Metropolitan asserts noncompliance not survive the In- and of the Owner does premium, ment of *3 application providing with the term of sured. liability by will incur no Company

that “the Contingent or Owner If a new Owner has policy this until application reason of then, spec- unless otherwise designated, is full first premium and the been delivered ified, of a Contin- any prior designation to actually therein has specified Owner, Contingent Beneficiary, or gent Company.” at 10. App. accepted by voided. automatically be Beneficiary will concede, however, that there parties Both un- rights all specified, Unless otherwise fact which would are of material issues Owner, in the or policy der this are vested on these prevent estate, successors, or as- in the Owner’s grounds.1 signs. desig- may Owner Beneficiary that both Mr. Kucera undisputed It is —The 1974, or Contin- knew, change Beneficiary in the fall of nate or Mrs. Kucera of during the lifetime Metropolitan’s McKeesport gent Beneficiary Manager of home policy had returned the the Insured. office office. Indeed Mrs. Kucera was aware App. at 39. in her husband’s view removal of had the absolute Mr. Kucera Since in the from his desk while he was policy during his life right change beneficiaries hospital following intensive care unit of a Kucera as the time, designation of Mrs. injustice, upset heart attack was an which poli in the her no interest beneficiary gave him. July until her husband’s death cy. Thus 1979 Upon Mr. Kucera’s death in of 2, rights no contractual 1979 she had proof Mrs. Kucera submitted of death and “It is clear that the against Metropolitan. payment as the named benefi- requested life beneficiary on a naming mere of a ciary. correspondence There was between nothing per in that policy insurance vests representatives her and of v. Life Assur. Soc. Equitable son ....” of Finally April about the claim. in late 523, Stitzel, Super. Metro- 1981 she received a letter in which expec mere (1982). beneficiary’s 525 13, politan liability. denied On 1981 tance becomes a vested requested she additional information. On the in the death of company only upon December 1981 she filed her Quinten sured. v. United States Steel Allegheny in the Court of Common Pleas of 384, 392, 142 A.2d Corp., Pa.Super. 186 and it was removed to the district County, Provident Mut. 374-75 also See court. Ehrlich, v. 508 Philadelphia of Life Ins. Co. (as Cir.1975) (right change that if a issued undisputed (3d It is F.2d 134 which dispute) to which there is a material factual to insured personal is ownership insurer); Mr. was its owner. The abrogated by Sussman cannot provides: clause F.Supp. v. New York Life Ins. has (E.D.Pa.1940) (named beneficiary 88-89 may exercise Ownership Owner —The proceeds or its no vested interest during this rights all lifetime). during insured’s lifetime the Insured. Metropolitan’s prac- premium payments, and whether waiver of 1. These include whether disability premiums respect benefit be- deductions tices with operative. employees applica- Mr. Kucera retired on disabili- provision came made the in the hospital- ty early having payment then been tion form about of the first may Company’s have been disabled inapplicable, times. He an- ized several whether meaning policy earlier position it un- within the nounced on cancellation made tendering necessary for the insured to continue date. true, course, beneficiary’s It that the general application rule of It is a compa- of action accrues for limita an insurance rights against that a cause only prose when it could be owner’s purposes tions are ny derivative E.g., Unit successful conclusion. Metropoli- cuted to a rights. Thus it well be Wurts, 414, 418, 58 ed 303 U.S. States Mrs. Kucera’s tan has valid defenses to (1938); Grayson 82 L.Ed. 932 S.Ct. fail- contract action based owner’s Harris, 300, 304-05, U.S. S.Ct. ure other conduct. Mr. pay premiums (1929); 73 L.Ed. 700 Baron v. United conduct, however, Kucera’s was not the ba- Cir.1983); Artists, (3d 717 F.2d summary judgment. sis for the Nor could Lieberman, Philadelphia City been, above, are it have for as noted there denied, (3d Cir.), cert. 311 U.S. its bearing upon sig- material factual issues 85 L.Ed. 438 The rule S.Ct. nificance. Pennsylvania is no different than else from will be re- judgment appealed *4 of ... where. action accrues “[A] versed and the case remanded for trial. right when one has the to institute a suit.” Bell 346 Pa. Brady, v. ROSENN, Judge, dissenting. Circuit “A 549 cause of action accrues party legal right the moment the has a that agree majority I with the if an in- Philadelphia, Quak sue.” B. & W.R. v.Co. policy Metropolitan surance between Life Co., 362, 367, er C.F.M. 282 Pa. 127 A. Company (Metropolitan) Insurance conditional, 847 If a contract is the Glenn Kucera was in force at the time of time statute of limitations runs from the death, the Regina latter’s had performed the condition is or exists. Ton independent poli- cause of action under the Baum, (1886).2 kin v. 114 Pa. 7 A. 185 Thus, the cy beneficiary. majority as the Metropolitan has referred us to no authori holding correct in that her cause of action in that ty Pennsylvania suggesting the policy allegedly for the face amount of her death there was claim any husband’s did not arise until the death of the issued standing it which Mrs. Kucera had Regina 1979. July named insured on to assert.3 claim, however, Kucera’s cannot survive a judgment unless she motion for The trial court reasoned that if a breach question can raise a material of fact as to occurred, of contract the occurrence was in Her claim is policy whether a was in force. September of and because Mrs. Kuc- that Metro- entirely allegation based on the breach, era knowledge had of that the six terminated Glenn Kuc- politan wrongfully year time bar in 42 Pa.Con.Stat.Ann. Kuc- policy. Regina era’s At the time that 5527(2) (Purdon 1981) for action “[a]n suit, cause of action brought any era this her began running against a contract” of the was policy for termination reasoning ignores then. The court’s the the statute of limitations. The indisputable fact that she had no contract 2, 1979, ruled that correctly of kind until when district court because any brought the named insured died. there had no claim within the L.E.R., Co., Pittsburgh 2. See also Pollock v. B. see Callender v. Lamar Life Ins. 182 Miss. & (1923); (1938) (beneficiary may 275 Pa. 119 547 A. Noonan 182 So. 119 treat Pardee, (1901); Myers 50 A. 255 when on death of as still in force and sue Co., 366, 373-74, Pa.Super. USAA Cas. Ins. 298 due). Hungerpiller insured it becomes has City (1982); of A.2d Rudman v. court, by any been followed other and would Scranton, 148, 152, Pa.Super. 173 A. not, view, Supreme in our be followed the (1934); Bolender v. Farm Bureau Mutual event, may, any Pennsylvania. It Court of Co., 1973). (3d Ins. Cir. policy provision particular have turned on a giving beneficiary ownership rights. More- Metropolitan Hungerpiller on Acacia 3. relies over, opinion suggests directed Co., 264, 9 Mut. Life Ins. 194 S.C. S.E.2d may have verdict which it affirmed rested (1940), holding runs that statute of limitations nonpayment lapse pre- of another defense: from the date of named miums. premiums. nonpayment But cancellation for time of his death inured to the benefit of his to reinstate period limitations be- ultimately force, there- personal longer nowas law six not raise claim did came barred Kucera’s Regina fore I breach.1 alleged fact. As believe after question years material the de- granted properly court the district opinion As I read the I summary judgment, motion fendant’s summary judgment case, granted it this majority and with the disagree respectfully for al- claim ground would affirm. con- the insurance wrongful breach leged Regina Kucera’s predicate The Pennsylva- “the untimely because tract was termina- alleged unilateral arises out run had of Limitations six-year nia Statute policy by Metropol- recovery of tion and was complaint claim before on the it discovered that in 1974 when itan Life Insur- Kucera v. filed.” which he heart condition for insured had a 82-109, (W.D.Pa. at 1 slip op. ance No. alleg- hospitalized. decision, 2, 1982). support Dec. unilater- es, alia, that “the Defendant inter material found certain court the district any and without justification without ally, to be appear did not facts that stated by the contract of insurance breach of said of insur- for the Application dispute. to have been declared the insured premi- until the first not effective ance was delivered placed’ properly and/or ‘not was delivered paid. um is- effect as of the date of not in and/or remained but the decedent on Further, ¶ Complaint at suance.” where the decedent at his office *5 alleges: 19 of the paragraph office of McKeesport the manager sales times, ready at all stood “The insured that court found The district Metropolitan. required under willing pay premiums to the a heart hospitalized was the insured to the De- subject the life insurance 1974, 15, and several on May condition so fendant, doing from prevented but was employ- He retired times thereafter. unjusti- the Defendant’s unilateral by Although early 1975. disability ment on not in fied the was insistence by premium the pay planned he had accept refusal to effect and the Defendant’s deduction, the ini- the insured the payments from any premium further 1974, 19, on June premium tial $26.50 insured.” a form ac- filed contemporaneously com allegations foregoing hospitalization. knowledging the insurer plaint essentially charge also found: 2-3. The court slip op. at poli terminated or cancelled the wrongfully 4, 1974, Metropolitan, September On plain cy of insurance that is the basis of form, the notified received the having allegations, tiff’s those claim. Under could McKeesport office cause of action for the breach of and asked that placed not be insured, immediately accrued to the Glenn re- It was to the home office. returned Kucera, upon wrongful termination. De- September turned and on as to that cause The statute of limitations premium initial refunded the fendant the insured began of action to run cashed the check and decedent did alleged wrongful breach and 11, 1974. September check on “The upon his death. stop running not statute runs [of limitations] that the was aware The decedent action, thereof.” right of the holder employer returned to his Dist., Ill. Chicago Park O’Connell when he cashed September N.E.2d Whatever He made no check for refund possessed cause of action the decedent at she, designated, per- as benefi- plaintiff designated and if she were not as the 1. Had the ciary alleged insured, could have com- under the could sonal she bring personal representative pelled brought remaining have the suit within the death, following appropriate action. statutory period the insured’s deposition plain- claim .... In her [the got- her “had related that husband a/k/a Old HOUSE SAUNDERS

tiff] it had ten notice that been cancelled Philadelphia, Home Man’s had been refused.” Petitioner, Kucera, 3. court slip op. at The district found that if there was breach it occurred RELATIONS NATIONAL LABOR latest, “when September BOARD, Respondent. returned.” the check for the No. 82-3594. Kucera, slip op. at 5. Appeals, States Court of United Thus, opin- I read the as Third Circuit.

ion, con- for breach of 8, 1980. tract barred on September Argued Sept. Regina Kucera commenced this action Decided Oct. 1983. If a promisee December pat- would be agreement, enforce an “[i]t allow a benefi-

ently unjust to mere donee Paxson

ciary enforce it.” Williams v. Co.,

Coal Assured Simmons Western See (5th (the Cir.1953) con- beneficiary of an insurance

third-party

tract no better to enforce acquire “can

the contract than that held the contract- Williston, themselves”); A

ing parties 2 S. Contracts, Law of 364A

Treatise on the

(3d ed.1959). in-

The district court found that

sured’s claim for the termination *6 insurance of lim- statute

barred filing plaintiff’s

itations

complaint. plaintiff’s claim could insured,

rise any higher than that of the successfully

and therefore she could not

demonstrate termination. the district

Although opinion clarity

not be a model of have might

explained the effect of time- plaintiff’s

action, properly court nonetheless summary judgment

entered for the defend-

ant. therefore affirm the I would

of the district court.