Full opinion text
ORDER NORTON, District Judge. This matter is before the court on a veritable plethora of post-trial motions following a June 2000 jury trial in this matter. I. Factual Background Plaintiff commenced this action on July 28, 1998, asserting state law causes of action against Employee Resource Management, Inc. (“ERM”) for breach of contract and violation of the South Carolina Unfair Trade Practices Act (“SCUTPA”). Plaintiff also asserted federal question causes of action against defendants Attaway, Ber-man, King, Rand, and Yountz (“Individual Defendants”) for violation of 42 U.S.C. § 1962(a) and (c) of the Racketeering Influenced and Corrupt Organization Act (“RICO”). Pre-trial discovery in this case was extensive. The parties exchanged or reviewed an estimated thirty thousand (30,-000) documents and took depositions of no less than twenty-five (25) fact and expert witnesses. Similarly, the parties’ case-dis-positive motions proved to be voluminous and complex. A jury trial was held on June 12-19 and June 26-28, 2000. On June 27, 2000, this court granted the individual defendants judgment as a matter of law on the RICO § 1962(c) cause of action, but submitted the breach of contract and SCUTPA causes of actions against ERM to the jury on June 28, 2000. Later that same day, the jury returned verdicts for plaintiff on both causes of action, including a finding that ERM willfully violated the SCUTPA. The jury awarded plaintiff actual damages in the amount of $956,953.08 on both counts. The deputy clerk entered a judgment in the amount of $956,592.08 on June 29, 2000. On July 6, 2000, plaintiff filed a Notice of Election of Remedy and Request for Additional Relief. In this Notice, plaintiff requested that this court treble the actual damages award and enter judgment accordingly for plaintiff in the amount of Two Million Eight-Hundred Sixty-Nine Thousand Seven Hundred Seventy-Six and 24/100 ($2,869,776.24) Dollars. In response, ERM filed motions for judgment as a matter of law, or in the alternative for a new trial, and in the alternative for a new trial nisi remittitur. II. Defendant’s Post-Trial Motions A. Employee Resource Management’s Motion for Judgment as a Matter of Law, or in the alternative, For a New Trial, and in the alternative, For a New Trial Nisi Remittitur ERM moves pursuant to Rules 50(b) and 59 for an Order granting judgment as a matter of law, or in the alternative, for a new trial and/or new trial nisi remittitur. 1. ERM’s Motion for Judgment as a Matter of Law Pursuant to Rule 50(b) At the conclusion of plaintiffs case, defendants moved for Judgment as a Matter of Law pursuant to Rule 50(a) to dismiss Count II of plaintiffs Amended Complaint, which alleged violations of the South Carolina Unfair Trade Practices Act (“SCUT-PA”) against ERM. This court denied the motion. ERM now moves pursuant to Rule 50(b) for judgment as a matter of law on Count II of the Amended Complaint. Rule 50(b) provides that: “[i]f, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion.” A party is entitled to judgment as a matter of law “if the nonmoving party failed to make a showing on an essential element of his case with respect to which he had the burden of proof.” Price v. City of Charlotte, 93 F.3d 1241, 1249 (4th Cir.1996) (quoting Bryan v. James E. Holmes Regional Med. Ctr., 33 F.3d 1318, 1333 (11th Cir.1994)). If there is any evidence on which a reasonable jury could return a verdict in favor of the non-moving party, judgment as a matter of law should not be granted. See id. However, judgment as a matter of law is appropriate when the evidence can support only one reasonable conclusion. See Chaudhry v. Gallerizzo, 174 F.3d 394, 405 (4th Cir.1999), cert. denied, 528 U.S. 891, 120 S.Ct. 215, 145 L.Ed.2d 181 (1999); Singer v. Dungan, 45 F.3d 823, 827 (4th Cir.1995); Persinger v. Norfolk & Western Ry. Co., 920 F.2d 1185, 1189 (4th Cir.1990) (holding that JNOV [now Judgment as a Matter of Law] “should not be granted unless the evidence is so clear that reasonable men could reach no other conclusion than the one suggested by the moving party.”). The court must review the evidence and all reasonable inferences in the light most favorable to the nonmoving party. See Price, 93 F.3d at 1249. In considering a motion for judgment as a matter of law, the court must not re-weigh the evidence, make credibility determinations, or substitute its own judgment for the jury’s. See id.; see also Anheuser-Busch, Inc. v. L & L Wings, Inc., 962 F.2d 316, 318 (4th Cir.1992), cert. denied, 506 U.S. 872, 113 S.Ct. 206, 121 L.Ed.2d 147 (1992). A party moving for judgment as a matter of law, bears a heavy burden to establish that the jury’s verdict should be invalidated. See Thompson v. Direct Impact, Co., 63 F.Supp.2d 721, 723 (E.D.Va.1998), aff'd 188 F.3d 503 (4th Cir.1999). In ruling on a renewed motion for judgment as a matter of law, a court may allow the jury’s verdict to stand, order a new trial, or direct entry of judgment as a matter of law. See Fed. R.Civ.P. 50(b). In sum, “[a] renewed motion for judgment as a matter of law is not an occasion for the Court to usurp the jury’s authority to weigh the evidence and gauge the credibility of witnesses.” See Thompson, 63 F.Supp.2d at 723 (citing Taylor v. Home Ins. Co., 777 F.2d 849, 854 (4th Cir.1985)). “The defendant bears a ‘heavy burden’ in establishing that the evidence is insufficient to uphold the jury’s verdict.” Thompson, 63 F.Supp.2d at 723 (citing Price, 93 F.3d at 1249). 2. ERM’s Argument that the SCUTPA Only Applies to Consumer Protection or Antitrust Activity In its Rule 50(b) motion, ERM reasserts an argument it made in its Rule 50(a) motion. It argues that the SCUTPA is limited solely to instances of consumer protection or antitrust activity, because the FTC Act [15 U.S.C. § 45(l)(n) ] is so limited. ERM premises this argument on § 39-5-20(b) of the SCUTPA, which provides: [I]t is the intent of the Legislature that in construing paragraph (a) of this section [declaring unlawful unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce] the courts will be guided by the interpretations given by the Federal Trade Commission and the Federal Courts to § 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time amended. Contrary to ERM’s argument, § 39-5-20(b) merely provides that the courts shall be guided by the FTC and federal court interpretation. The language of the SCUTPA itself declares unlawful “unfair methods of competition and unfair or deceptive acts or practices within the conduct of any trade or commerce.” S.C.Code Ann. § 39-5-209(a). The South Carolina Supreme Court recently held that “the provisions of any services constitutes commerce within the meaning of the UTPA.” Taylor v. Medenica, 324 S.C. 200, 479 S.E.2d 35, 44 (1996). In at least two cases, the South Carolina Supreme Court affirmed the applicability of the SCUTPA in contexts that fall outside of the “usual” consumer protection and antitrust actions. See, e.g., Taylor v. Medenica, 479 S.E.2d at 44 (holding that both physician and laboratory medical services fell within the expansive commerce definition of the SCUTPA); Prestwick Golf Club, Inc. v. Prestwick, Ltd. Partnership, 331 S.C. 385, 503 S.E.2d 184, 187 (1998) (holding that abrogation of tee time schedule by defendant could give rise to a SCUTPA cause of action). Moreover, a federal district court in South Carolina has specifically held that the SCUTPA is not constrained solely to consumer protection: [t]he UTPA does not expressly apply only to consumer transactions. Judicial interpretation of the UTPA, by requiring that a transaction must affect the public interest to be cognizable, may have given a de facto consumer orientation to it. But the South Carolina UTPA also includes transactions between businesses or commercial entities such as the parties to these actions. That this interpretation of South Carolina’s UTPA is correct is necessarily implied by South Carolina decisions involving only non-consumer parties such as Noack Enterprises, Inc. v. Country Corner Interiors, 290 S.C. 475, 351 S.E.2d 347 (1986) and Key Co., Inc. v. Fameco Distributors, 292 S.C. 524, 357 S.E.2d 476 (1987). If a dispute between non-competing businesses or commercial entities were not within the UTPA’s scope, the court would never have reached the issue of required involvement of the public interest in Noack or the issue of the insufficiency of a mere breach of contract in Fameco. Consequently, the fact the parties’ transaction is not a consumer transaction does not prevent it from giving rise to a UTPA claim. McTeer v. Provident Life & Accident Ins., 712 F.Supp. 512, 515 (D.S.C.1989). Based on the foregoing discussion, this court rejects ERM’s argument that the SCUTPA is limited solely to instances of consumer protection or antitrust activity because the FTC Act [15 U.S.C. § 45(1)(n) ] is so limited. a. Liberty Mutual Proved that the Unfair/Deceptive Act Had An Impact Upon the Public Interest In order for an unfair or deceptive act or practice to be covered under the SCUTPA, the unfair or deceptive act or practice must impact the public interest. See York v. Conway Ford, Inc., 325 S.C. 170, 480 S.E.2d 726, 728 (1997); Global Protection Corp. v. Halbersberg, 332 S.C. 149, 503 S.E.2d 483, 487 (1998). ERM argues in its Memorandum in Support of its Motion for Judgment as a Matter of Law that Liberty Mutual failed to establish the effect on the “public interest.” ERM’s unfair acts or practices satisfy the public interest requirement of the SCUTPA. The holding in Burbach v. Investors Management Corp. Int’l, 326 S.C. 492, 484 S.E.2d 119, 120 (1997), can be read for the proposition that where the government regulates an economic relationship, the fact that the parties’ relationship is also governed by a contract will not preclude a finding of “public interest” under the SCUTPA if the government regulation imposes on the parties a framework of duty without regard to their contractual arrangements. Following Burbach, the framework of statutory duties and obligations existing between an employer and a workers’ compensation insurance carrier, especially the duties established under the Assigned Risk Plan and the South Carolina Staff Leasing Services Act (S.C.Code Ann. § 40-68-10, et seq.), place the relationship of the parties in this case clearly within the public domain. The SCUTPA’s “public interest” requirement may be satisfied in South Carolina if the alleged unfair or deceptive acts or practices have the potential for repetition. See York v. Conway Ford, Inc., 325 S.C. 170, 480 S.E.2d 726, 728 (1997); Global Protection Corp. v. Halbersberg, 332 S.C. 149, 503 S.E.2d 483, 487 (1998). Potential for repetition may be shown in two ways: “(1) by showing the same kind of actions occurred in the past, thus making it likely they will continue to occur absent deterrence; or (2) by showing the company’s procedures create a potential for repetition of the unfair and deceptive acts.” Daisy Outdoor Advertising Co., Inc. v. Abbott, 322 S.C. 489, 473 S.E.2d 47, 49-50 (1996). Further, the plaintiff in a SCUTPA action is required only to allege and prove those facts sufficient to demonstrate potential for repetition; at that point, plaintiff has proven an adverse effect on the public interest sufficient to recover under the SCUTPA. See Crary v. Djebelli, 329 S.C. 385, 496 S.E.2d 21, 23 (1998). Liberty Mutual presented evidence at trial of ERM’s conduct in violation of the “public interest” requirement of the SCUTPA, as evidenced by the jury’s specific finding of a willful violation of the SCUTPA. Bearing in mind the axiom that the whole is often greater than the sum of its parts, this court cannot overstate the importance of the legal weight of the specific jury finding. The following evidence from the trial record supports the jury’s verdict. b. ERM’S Failure to Pay What It Owed Under the Assigned Risk Plan Adversely Affected Other Insurers, Companies, and Their Insureds by Way of Increased Premium Rates In its Memorandum in Support of its Motion for Judgment as a Matter of Law, ERM references the testimony of Liberty Mutual witness Dean Kruger to support its argument that its actions did not satisfy the public interest requirement of the SCUTPA. Reference to the record of Mr. Kruger’s testimony is given below. If the jury believed any of Mr. Kruger’s testimony in this regard, even if they believed nothing else regarding impact on the “public interest,” this testimony alone would be sufficient to sustain the verdict of willful violation of the SCUTPA. Witness Yol. Page/Line Testimony/Exhibit Dean Kruger II p. 313,1.15-18; Cost of insurance fraud borne by all p. 316,1.1-17 employers in South Carolina Dean Kruger II p. 331,1.10-18 Premium losses are charged back to South Carolina employers Dean Kruger II p. 331,1. 7-25; The harm to Liberty Mutual is loss of p. 332,1.1-2 premium due c. ERM’s Actions Enabled It to Compete Within the Employee Leasing Industry With the Unfair Advantage of Having Low Workers’ Compensation Premiums Liberty Mutual’s continuing theme throughout the trial of this case was the accelerated growth of ERM towards its ultimate sale to SES. As an employee leasing company, one of the largest cash outlays or overhead expenditures for ERM was workers’ compensation insurance. Liberty Mutual argued and proved that ERM engaged in a continuing pattern of activity designed to withhold premiums due to Liberty Mutual and that these activities lowered ERM’s overhead/liabilities and made it appear more profitable, and therefore, more valuable to SES. Using this scheme, ERM was able to compete unfairly with other employee leasing companies. It is this conduct which establishes both an adverse impact on the “public interest,” as well as the potential for repetition required by Daisy Outdoor. The following excerpts of trial testimony support this finding: Witness Vol. Page/Line Testimony/Exhibit Dennis Kokulak Ill p. 551,1. 6-17 Final premiums for workers’ comp, are tallied at year-end, but should indicate “significant changes” affecting premium within the year. Jeff Tipton III p. 558,1.19— p. 559,1.13 How workers’ compensation premiums are calculated Jeff Tipton III p. 562,1. 21— p. 563,1.18 Non-disclosure of payroll by ERM Deceit in application for workers comp, insurance by ERM Jeff Tipton V V Oí Oí oo oo H-I O Ex. 173 (ERM application for W.C. insurance dated 12/26/90) Robert Rand VI p. 1028,1.4-17 Discussion of ERM’s practice of paying “band-aid” claims out-of-pocket to control workers’ compensation costs Robert Rand VI p. 1097,1.3-17 ERM client Fisk Farms billed for workers’ comp, when Fisk Farms had no coverage Robert Barrow VI p. 1153,1. 22-p. 1159,1.11 Adding ERM Charleston location to Cincinnati Insurance policy resulted in non-disclosure of payroll/premium increases Billie Attaway V p. 898,1.13-p. 900,1. 7 ERM sought to lower its workers’ comp, premiums by decreasing the claims it filed by handling “band-aid” claims in-house through Kelly Yountz, per B. Attaway’s direction (1). ERM Misled Some, Clients As To Whether They Had Workers’ Compensation Insurance Coverage Placing Liberty Mutual and the Uninsured Clients At Risk Another focus of Liberty Mutual at the time of trial was ERM’s deception of some clients as to whether they had workers’ compensation insurance, thereby placing Liberty Mutual and the uninsured clients at risk for uncovered claims. Liberty Mutual submitted credible evidence that a subsidiary of ERM, At Once Temporary Services, (“AOTS”) was concealed from Liberty Mutual from its inception through the 1994 audit; was initially not charged workers’ compensation premiums by ERM; and then later was overcharged workers’ compensation premiums for coverage it did not in fact have. Additionally, clients such as St. Louis Beer Sales (“SLBS”), Bullet Deliveries, and Fisk Farms, had their accounts charged by ERM for workers’ compensation premiums which ERM did not pay to Liberty Mutual, nor was there coverage in place from Liberty Mutual for these client companies. This pattern of conduct also satisfies the public interest component of the SCUTPA because these practices of ERM were in fact repeated, and thus capable of repetition. Moreover, in addition to Liberty Mutual, innocent third party clients and their employees were placed at significant risk of non-coverage by the deceptive conduct of ERM. The testimony supporting this finding will be subdivided into two smaller categories, as follows: (a). ERM Misled Some Clients as to Whether They Had Workers’ Compensation Insurance Witness Yol. Page/Line Testimony/Exhibit Jim Lyles I p. 260,1.17— p. 262, 1. 12-13 Fisk Farms investigation/invoices for workers’ comp., showing premiums paid for each employee Terri Whitman II p. 370,1.16-19 ERM provided leased workers’ comp, coverage to Fisk Farms Terri Whitman II p. 371,1. 8— p. 372,1.12 ERM invoiced Fisk Farms expenses for workers’ compensation coverage Terri Whitman II p. 372,1.13— p. 373,1.14 Fisk Farms wanted all their employees to be covered with workers’ comp, insurance Ex. 233 (ERM invoices to Fisk Farms) Terri Whitman II p. 378,1. 4— p. 379,1. 2 Fisk Farms wanted insurance for all of its subcontractors Ex. 239 (B. Attaway letter to Fisk Farms regarding certificates of insurance dated 5/3/94) Terri Whitman II p. 380,1. 6-13 Whitman believed all Fisk Farms employees and sub-contractors had workers’ compensation coverage Terri Whitman II p. 388,1.17-24 Whitman believed no special workers’ compensation coverage for agricultural workers Harry Davis IV p. 754,1.1-25 p. 755,1. 8 p. 756,1. 8-25 p. 758,1. 8-21 ERM “covered” AOTS’ workers’ comp, until spring of 1994. Billed for the first time between $11,000 & $12,000 for worker’s compensation, then billed $70,000 for workers’ compensation Harry Davis IV p. 758,1. 8-21 Discussion of $70,000 bill to AOTS for workers’ compensation Billie Attaway V p. 967,1. 24-25-p. 968,1.1-2 Increase in Bullet Deliveries workers’ compensation premium Ex. 28 (Attaway letter to Joe Keesling dated 8/9/94) Kelly Yountz YII p. 1394, 1. 16-25, p. 1395,1.1-5 p. 1400,1. 2-6 Deductible charged by ERM to some clients then some paid out of pocket for small claims Kelly Yountz VII p. 1401,1. 9 ERM/Yountz letter to Fisk Farms to report all accidents Ex. 244 (Yountz letter To Fisk Farms dated 1/29/92) Steve Balk Depo. p. 43,1.1-13 Workers’ compensation information ERM obtained from SLBS Steve Balk Depo. p. 44,1.14— p. 45,1.12 W-C Classification Codes for SLBS employees Joe Keesling Depo. p. 19,1. 24 — ■ p. 20,1.11 Bullet Deliveries believed they had workers’ compensation insurance through ERM Joe Keesling Depo. p. 24,1. 23-p. 25,1. 5 Keesling believed ERM provided Bullet with workers’ compensation coverage Joe Keesling Depo. ERM “handled” Bullet’s workers compensation claims lO io oa i-h to to a a The foregoing provides ample evidence that ERM engaged for an extended period of time in a practice of representing to their client companies that workers’ compensation insurance coverage was provided in their employee leasing contracts, and those client companies were billed for this coverage when none was in fact provided. This pattern of deceptive behavior possessed not only the potential for repetition, but was in fact repeated with the three clients listed above, thus satisfying the public interest requirement of the SCUT-PA. (b). ERM Placed Liberty Mutual & the Other Insured Clients (Bullet Deliveries, Fisk Farms, & AOTS) At Risk Due to Its Conduct Liberty Mutual submitted evidence that ERM used the following procedures to place its uninsured clients, Bullet Deliveries, Fisk Farms and AOTS, at risk. This was accomplished by handling “band-aid” claims in-house and not reporting all of those claims or the existence of certain client companies to Liberty Mutual during the 1994 audit process. Liberty Mutual paid considerable attention to AOTS, as a subsidiary of ERM, which was not charged for worker’s compensation for several years, then overcharged for workers’ compensation in 1994 and 1995. Liberty Mutual also proved that ERM failed to disclose AOTS to in the years preceding and during the 1994 audit procedure. The jury was presented with the following evidence supporting Liberty Mutual’s contention: Witness Yol. Page/Line Testimony/Exhibit Angie Owen I p. 68,1. 5-20— p. 72,1. 3-16 Attaway requests to add additional states to cover St. Louis Beer Sales, who had never been added or charged by ERM until 1994 Ex. 75 (Attaway fax to Liberty Mutual requesting additional states be added to policy dated 5/26/94) Randy Smith I p. 154,1.1-14 Smith (Liberty Mutual auditor) asks for all client subsidiary records for 1994 audit Randy Smith I p. 176,1.16-19 Robert Rand did not talk about AOTS with Smith Randy Smith I p. 176,1. 24— p. 177,1.1-5 Smith again asks for all client subsidiary records for 1994 audit Randy Smith I p. 209,1. 20 Robert Rand never told Smith that AOTS records were at another location Randy Smith I p. 202,1. 6-8 Smith wanted payroll for all employees of policy holder; Robert Rand did not provide payroll for employees of AOTS Randy Smith I p. 208,1.10-17; p. 209,1.14 Smith asked for AOTS records; were never produced to him Randy Smith I p. 211,1.11-19 Smith told by ERM representatives that he had all client subsidiary records; did not have AOTS records at that time. Jim Lyles I ' p. 255,1.12-24 During his investigation, Lyles discovered numerous ERM/AOTS injuries treated at Baker Hospital; many had not been reported to the workers’ comp, commission Neil Johnson II p. 403,1. 21— p. 404,1. 7-14 Investigation of Baker Hospital claims & AOTS Ex. 15 (1992 audit) (compare with Jim Lyles’ testimony above) Neil Johnson II p. 405,1.11— p. 406,1. 4 1992 audit worksheet showed one AOTS code Neil Johnson II p. 490,1. 22— p. 491,1. 7 Only code listed for AOTS was “clerical;” other types of workers not disclosed Harry Davis IV p. 749,1.10-15 p. 750,1. 6 ERM paid “band-aid” claims and billed back to clients; no insurance coverage existed, no reporting to Liberty Mutual of these claims Harry Davis IV p. 762,1. 6-20 Davis told by Robert Rand all files/ document^ necessary for ’94 audit were in the room provided to Liberty Mutual Harry Davis IV p. 766,1. 3— p. 768,1.1-23 1994 audit scope problems; R. Berman and R. Rand postpone audit until B. Attaway returned; Davis testifies no problem with scope of Liberty Mutual audit, within generally accepted accounting principles (GAAP) Harry Davis IV p. 768,1.14-23 Regarding AOTS, Davis told and believed all necessary documents were in audit room Harry Davis IV p. 786,1. 8-22 Regarding AOTS, Davis again believed all records pertinent to audit were in room provided to Liberty Mutual Robert Rand VI p. 1022,1.1-19 AOTS payroll records were maintained off-site of audit premises (Wappoo Center) Robert Rand VI p. 1025,1. 2— p. 1026,1. 24 Bullet Deliveries was classified as “administrative services only” with a different Federal I.D. number Robert Rand VI p. 1027,1. 8-23 ERM set up two companies for Fisk Farms and split administrative workers from agricultural Robert Rand VI p. 1027,1. 20-p. 1028,1.17 Rand admits “band-aid” claims were paid Robert Rand VI p. 1058,1.16-p. 1059,1. 5 Rand admits “band-aid” claims were not reported to Liberty Mutual Robert Rand VI p. 1074,1. 4— p. 1075,1. 4 Rand discusses records needed for audit; AOTS employees should have been covered in audit Robert Rand VI p. 1088,1.19— p. 1089,1. 4 Bullet Deliveries records for the 1994 audit Robert Rand VI p. 1090,1. 8-18 Bullet Deliveries was never reported to Liberty Mutual in 1994 Robert Rand VI p. 1092,1. 8-11 AOTS had workers’ compensation through ERM Robert Rand VI p. 1093,1.19-p. 1096.1.16 Location of audit records administered accounts; not provided at audit, but R. Smith’s fault for not asking where they were Robert Rand VI . 1109,1. 22— . 11111.14 Workers’ compensation premiums for SLBS collected by ERM Robert Rand VI . 1114,1. 3-25 SLBS payroll information Robert Rand VI . 1122,1. 3-19 “Mistake” that Bullet Deliveries’ records were not at 1994 audit Robert Rand VI p. 1117,1. 7-19 Fisk Farms on Certificate of Insurance, no distinction noted between administrative or agricultural workers Robert Berman VII p. 1279,1.13-25— p. 1280,1.13 Fisk Farms agricultural workers Robert Berman VII p. 1296,1. 21-22 Admits “band-aid” claims paid by ERM Robert Berman VII p. 1307,1. 2-17 p. 1310,1.10 Invoices to Fisk Farm gave appearance that they had worker’s comp, when they were in fact not insured for worker’s compensation Ex. 243 (contract b/t ERM and Fisk Farms) Robert Berman VII p. 1311,1. 3-8— p. 1312,1. 6 ERM submitted claims for Fisk Farms agricultural workers to to Liberty Mutual Ex. 74 (Callahan claim form First Report of Injury) Kellie Yountz VII p. 1390, 1. 15-25; p. 1391, 1. 17-25 Discussion of ERM’s “band-aid” claim policy; discretion regarding whether claim paid in-house or reported by B. Attaway or R. Berman Kellie Yountz VII p. 1403,1. 7-11— p. 1404, 1. 5-19 AOTS first report of injury forms Steve Balk St. Louis Beer Sales had deductible with ERM o a CD Q Ex. 75 (5-26-94 letter from B. Attaway to Liberty Mutual adding St. Louis Beer Sales to policy; never disclosed previously until claim occurred) Ex. 78 (contract b/t ERM and SLBS dated 1/18/94) Steve Balk Depo. p. 96,1.19-p. 97,1.17 Workers compensation report ERM invoices & payroll to SLBS prior to 1994 Ex. 79 (SLBS Report) Ex. 271 (R. Rand letter to Balk regarding weekly payroll dated 1/12/94) Howard Chapman Depo. p. 24,1.16-p. 26,1.4 Believed AOTS always had workers’ compensation coverage through ERM Howard Chapman Depo. p. 26,1.15-p. 28,1. 25 Filling out first reports of injury Howard Chapman Depo. p. 29,1.10-p. 30,1. 6 Filling out first reports of injury Howard Chapman Depo. p. 33,1.11— p. 34,1.14 ERM handled AOTS’s injury claims Howard Chapman Depo. p. 34,1. 22— p. 35,1. 22 Chapman called ERM when a client asked about workers’ compensation coverage Howard Chapman Depo. p. 45,1.1— p. 46,1.19 ERM letter of 10/5/94 regarding $70,000 workers’ compensation bill to AOTS Ex. 230 (ERM letter to Chapman dated 10/5/94) d. ERM Deceived the Cincinnati Insurance Co., Fireman’s Fund & the Georgia Assigned Risk Plan When it Tried to Obtain New Coverage in Georgia Liberty Mutual showed that after its relationship with ERM soured in the wake of the 1994 audit, ERM began to search for alternative means to satisfy its workers’ compensation insurance requirements, including the retainer of an insurance agent in Georgia. This agent, Robert Barrow, recommended that ERM form a Georgia corporation. The purpose of forming this corporation, as explained by Liberty Mutual witness Dean Kruger, was to “back-door” the substantial payroll reporting requirements of ERM’s Charleston operation and clients in other states into Georgia by setting up a shell corporation in Georgia initially, and then moving additional payroll/clients on the Georgia policy at a later date. According to Liberty Mutual, the net result of the scheme was that ERM, through ERM of Georgia, deceived the Cincinnati Insurance Company, Fireman’s Fund Insurance Company, and the Georgia Assigned Risk Plan by establishing the shell corporation and misrepresenting over $20,000,000 of payroll liability from ERM’s South Carolina operation, in addition to its clients in other states. Citations to the record supporting the foregoing are given below. Witness Yol. Page/Line Testimony/Exhibit Dean Kruger II p. 312,1. 23-p. 312,1. 8 Discussion of using the Georgia corporation to “back-door” coverage of ERM’s South Carolina operations Jeff Tipton III p. 696,1. 9-p. 697,1.11 Discussion of Cincinnati Insurance (Ex. 289) Tom Corcoran IV p. 793,1. 6— p. 794,1.19 AOTS not disclosed t o Fireman’s Fund AOTS not disclosed to Fireman’s Fund, but certificate of insurance issued by R. Barrow in Georgia Tom Corcoran V V -q -q ZD ZD -q as Tom Corcoran IV p. 809,1. 6-11 AOTS not disclosed in 1994 or 1995 to Fireman’s Fund Billie Attaway V p. 927,1.: Plan to set up Georgia “shell corporation” Ex. 35 (4/4/94 ERM Board Minutes) Billie Attaway V p. 939,1.19-23; p. 940, 1. 12-14 ERM to set up shell Georgia corporation Billie Attaway V p. 949,1.15 Further discussions on ERM setting up shell Ga. corporation through Robert Barrow; voted on by all principals of ERM Robert Rand VI p. 1029,1. 20-p. 1031,1. 21 Telephone call to R. Barrow regarding ERM’s workers’ compensation options Robert Rand VI p. 1102,1. 7— p. 1105,1.13 ERM of Georgia to be “a shell of a corporation” Robert Barrow VI p. 1148,1. 20-p. 1153,1.18 ERM’s options discussed at 4-4-94 Board Meeting; “short term” solution of Cincinnati or Fireman’s Fund coverage (payroll could be hidden until audit) Robert Barrow VI p. 1157,1. 21— p. 1159,1. 6 Georgia application omitted $20,000,000 of ERM’s payroll Robert Barrow VI p. 1159,1.12— p. 1160,1. 9 Barrow/ERM omitted AOTS from Fireman’s Fund application Robert Berman VII p. 1270,1.1-5 Berman testified reason ERM move to Georgia not completed was because some of officers did not want to move from Charleston, South Carolina Robert Barrow Depo. p. 21,1. 21— p. 22,1.14 ERM opening office in Georgia Robert Barrow Depo. p. 25,1. 5— p. 26,1. 23 Formation of ERM of Georgia Corporation Robert Barrow Depo. p. 29,1.14— p. 31,1. 25 Insurance coverage for ERM of Georgia Ex. 284 (Georgia application for workers’ compensation) Robert Barrow Depo. p. 23,1.11— p. 35,1. 24 Discussion regarding ERM of Georgia application for workers’ compensation Robert Barrow Depo. p. 42,1.2— p. 43,1.11 Barrow letter to ERM advising that states can be added to Cincinnati policy Ex. 287 (see above) Robert Barrow Depo. p. 44,1. 721— p. 45,1. 23 Discussion of Barrow letter to Cincinnati Ins. Robert Barrow Depo. p. 46,1.12-19 Barrow identifies fax to Jim Lyles Ex. 288 (see above) Robert Barrow Depo. p. 47,1. 23-p. 49,1.10 Barrow letter to Cincinnati Ins. canceling coverage Ex. 289 (see above) R. Berman letter to Barrow re: having Fireman’s Fund Program by Sept. 1994 Robert Barrow CO cr cn or co U CD o Ex. 291 (ERM letter to Barrow dated 8/24/94) Robert Barrow Depo. p. 82,1. 22— p. 86,1. 3 AOTS not revealed to Fireman s Fund Ex. 299 (Barrow letter to Gene King re: need list of clients dated 6/7/94) Robert Barrow Depo. p. 86,1. 7-20 R. Berman letter to Barrow re: information on AOTS Robert Barrow Depo. p. 104,1.10-23 Cincinnati Insurance Company Binder Ex. 304 (Workers’ Compensation & Employer liability policy dated July 1994) e. ERM’S Offer of the Sale of Its Stock to SES Was Predicated Upon a Grossly Underestimated Liability to Liberty Mutual for Workers’ Compensation Premiums As noted above, it was Liberty Mutual’s theory that ERM’s principals planned to build the business quickly in the ultimate hopes of selling it off at a large profit. This motive, in and of itself, is certainly neither actionable nor objectionable. However, in order to inflate its value and entice buyers, there was ample evidence that ERM deliberately underestimated its liability to Liberty Mutual for workers’ compensation premiums in order to show maximum profits from its operations. Again, ERM repeated this practice in a pattern or course of conduct through its accounting principles and procedures which only ceased upon the sale of ERM to SES. As such, the past repetition of this conduct is sufficient to justify the “potential for repetition” prong of Daisy Outdoor, and serves as additional support for the jury verdict in this case. See generally, 322 S.C. 489, 473 S.E.2d at 49-50. The testimony supporting this proposition is outlined below: Witness Vol. Page/Line Testimony/Exhibit Harry Davis IV p. 778,1. 4— p. 779,1.17 ERM’s accounting practice was to roll over leftover workers’ compensation accruals into profits in 1992 and 1993; 1994 financial numbers did not reflect the true amount of ERM’s liability to Liberty Mutual Robert Berman VII p. 1264,1.11-17 Berman testifies ERM disclosed Liberty Mutual debt to SES Robert Berman VII p. 1283,1. 23-24 p. 1284, 1. 1-18 Further discussion of disclosure of Liberty Mutual debt to SES; Berman testifies told SES owed $156,000 when liability was assessed at $1.2 million Robert Rand VI p. 1038,1. 25-p. 1039,1. 5 Rand admits owed Liberty Mutual some premiums, but not $1.2 million There can be little doubt that ERM’s continuing pattern of deception regarding its workers’ compensation coverage in this instance impacts the public interest. ERM not only withheld information from the workers’ compensation plan of another state and two additional insurance companies, but also exposed its own payroll and client companies’ employees to the risk of non-coverage by its actions. The preceding citations to the trial record and the evidence adduced in this case clearly support the jury determination that ERM willfully violated the SCUTPA. B. ERM’s Motion For a New Trial ERM alternatively has moved for an order granting a new trial pursuant to Rule 59(a). Federal Rule of Civil Procedure 59(a) allows for a new trial “[i]n an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States.” (West 2000). Generally, on a motion for a new trial, “[i]t is the duty of the judge to set aside the verdict and grant a new trial, if he is of the opinion that the verdict is against the clear weight of the evidence, or is based upon evidence which is false, or will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict.” Gill v. Rollins Protective Services Co., 836 F.2d 194, 196 (4th Cir.1987) (quoting Aetna Cas. & Sur. Co. v. Yeatts, 122 F.2d 350, 352-53 (4th Cir.1941)). ERM contends that the court incorrectly charged the jury and used an improper verdict form with respect to proximate cause and calculation of damages. ERM argues that it is impossible to determine, which, if any, damages should be trebled under the SCUTPA. The premise of ERM’s argument is that a SCUTPA plaintiff must quantify and prove damages that are specifically and solely attributable to the alleged unfair trade practice. This court denies ERM’s motion for a new trial. The evidence at trial revealed that Liberty Mutual’s damages under its breach of contract and SCUTPA claims were identical. Accordingly, this court finds that the damages should not have been separated on the verdict form and the jury instructions properly reflected this premise. C. ERM’s Argument for Judgment of Law on the Breach of Contract Claim ERM argues that it is entitled to judgment as a matter of law on plaintiffs contract claim as this claim is barred by the applicable statute of limitations. This court carefully analyzed the statute of limitations issue at summary judgment and once again at trial. After reviewing defendant’s arguments once again on this issue, this court concludes that the statute of limitations issue was one properly submitted to the jury. The 1994 insurance policy at issue provided inter alia that: The final premium will be determined after this policy ends by using the actual, not estimated, premium basis and the proper classifications and rates that lawfully apply to the business and work covered by this policy. If the final premium is more than the premium you paid to us, you must pay the balance ... You will let us examine and audit all your records that relate to this policy ... We may conduct the audit during regular business hours during the policy period and within three years after the policy period ends. Information developed by the audit will be used to determine final premium. The discovery rule governed the statute of limitations issue in this case. The discovery rule provides that the statute of limitations for a breach of contract action accrues at the time the non-breaching party knew or by exercise of reasonable diligence should have known of the breach. See The Wilson Group, Inc. v. Quorum Health Resources, 880 F.Supp. 416, 424 (D.S.C.1995). ERM argued prior to trial that Liberty Mutual knew or should have known of ERM’s breaches in 1994, thus, their claim for breach of contract, which was not brought until 1998, was barred by the three year statute of limitations period. The evidence did not reveal that plaintiff knew of ERM’s breaches in 1994. Plaintiff presented evidence that it was not aware of ERM’s breach until September 1995, at which time a final audit revealed that ERM owed $1,377,943 to plaintiff for the 1994 premium. Moreover, there was no question that ERM seriously frustrated plaintiffs efforts to perform the audit pursuant to the contractual terms. As stated by Judge Currie in The Wilson Group, “this case presented] the typical situation where determining whether the discovery rule will relieve plaintiff from the operation of the statute of limitations [was] a question for the jury.” Id. Accordingly, the first question posed to the jury by this court on the verdict form was: “Is the breach of contract claim barred by the statute of limitations?” Both parties presented evidence on the statute of limitations issue to the jury. It was the jury’s duty to decide if plaintiffs contract cause of action was barred by the three of year statute of limitations. The jury found answered in the negative. Thus, this court denies defendant’s motion with regard to the statute of limitations issue. D. ERM’s Motion for a New Trial Nisi Remittur ERM argues that it is entitled to a new trial nisi remittur because the jury’s verdict is the exact amount of plaintiffs expert, Mr. Tipton’s, calculations. In essence, ERM argues that it was error for the jury to accept the Tipton Report in toto. ERM contends that the Tipton Report was incorrect and overstated the amount of premium due. It was the jury’s duty to determine the credibility of witnesses and to weigh the evidence. Obviously, the jury fully accepted Mr. Tipton’s testimony and calculations. The jury was in a position to weigh the evidence and chose to accept plaintiffs witness’s assessment of damages, therefore defendant’s motion for a new trial nisi remittur is denied. III. Plaintiffs Post-Trial Motions Plaintiff Liberty Mutual Insurance Company filed a Notice of Election of Remedy and Request for Additional Relief on July 6, 2000. Plaintiff requests that the court treble the actual damages award and enter judgment accordingly for plaintiff in the amount of Two Million Eight Hundred Sixty-Nine Thousand Seven Hundred Seventy-Six and ^oo ($2,869,776.24) Dollars in accordance with the jury’s finding of a willful or knowing violation of the South Carolina Unfair Trade Practices Act, under § 39-5-140(a). Plaintiff also requests an award of reasonable attorney’s fees and costs in favor of plaintiff as provided in S.C.Code Ann. § 39-5-140(a). Additionally, plaintiff filed a motion for prejudgment interest on the actual damages in the amount of Three Hundred Eighty-Five Thousand One Hundred Forty-Five and °%oo ($385,145.00) Dollars. The pre-judgment interest requested reflects the actual damage award from October 22, 1995 to June 28, 2000 at the rate of 8.75% annum. ERM opposes plaintiff’s Election on grounds that it has the “procedural affect” of amending the court’s judgment without authority to do so. In response, plaintiff filed a Motion for Relief From Judgment Entered June 29, 2000. A. Election of Remedies The doctrine of election of remedies “[fjorbids that one shall be twice vexed for one and the same cause.” United States v. Oregon Lumber Co., 260 U.S. 290, 301, 43 S.Ct. 100, 67 L.Ed. 261 (1922). Federal case law in this area is sparse. There is no provision in the federal rules allowing for an election of remedies, therefore the “[m]otion to elect is inappropriate. This is a federal court, not a state court.” Cooley v. Salopian Ind., Ltd., 383 F.Supp. 1114, 1116 (D.S.C.1974). Finding no such provision in federal law, this court rejects plaintiffs request for an election of remedies. B. Plaintiffs Motion for Relief From Judgment ERM objected to plaintiffs request for an election of remedies. ERM posits that because, plaintiff did not file a timely Rule 59(e) motion, but chose to file a request for election instead, plaintiff should be denied relief. 1. Rule 59(e) Is Inapplicable Rule 59(e) provides that: “[a] motion to alter or amend the judgment shall be filed no later than 10 days after entry of the judgment.” The Fourth Circuit has held that “[w]hile the Rule itself provides no standard for when a district court may grant such a motion, we have previously recognized that there are three grounds for amending an earlier judgment: (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” Pacific Ins. Co. v. American Nat’l Fire Ins. Co., 148 F.3d 396, 402 (4th Cir.1998); see also EEOC v. Lockheed Martin Corp., Aero & Naval Sys., 116 F.3d 110, 112 (4th Cir.1997); Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir.1993). Even if plaintiff filed a timely Rule 59(e) motion, none of the required grounds would be impacted. Accordingly, this court finds that a filing of a Rule 59(e) motion by plaintiff would have been inappropriate. 2. Rule 60(a) Dictates that this court correct a clerical mistake Rule 60(a) provides that “[clerical mistakes in judgments ... arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.” (West 2000). The rule further states that “during the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.” Id. The jury’s findings on the verdict form in this case mandate that this court enter a relief from judgment pursuant to Rule 60(a). The jury not only found that defendant violated the South Carolina Unfair Trade Practices Act, it found that defendant committed said violation willfully or knowingly. This finding dictates that this court treble damages and award plaintiff attorney’s fees pursuant to S.C.Code Ann. § 39-5-140(a). It would have been imprudent for this court to enter a judgment on these issues prior to considering defendant’s post-trial motions. Thus, the damages award of $956,592.08 is trebled and plaintiff is entitled to reasonable attorney’s fees and costs incurred in the pursuit of these actions. C. Motion to Recover Attorneys’ Fees & Costs Under the American Rule, each party bears the costs of its own attorneys, and attorney’s fees are generally not a recoverable cost of litigation unless a statute or agreement provides otherwise. See Key Tronic Corp. v. United States, 511 U.S. 809, 814-15, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994). The SCUTPA mandates that a court award attorney’s fees and costs to a successful party. See S.C.Code Ann. § 39-5-140(a) (“[U]pon the finding by the court of a violation of this article [the SCUTPA], the court shall award to the person bringing such action under this section reasonable attorney’s fees and costs.”). As stated by South Carolina Supreme court in Taylor v. Medenica: The attorney’s fees provision of § 39-5-140 is rationally related to the policy objectives of the UTPA. Allowing plaintiffs who successfully pursue an action under the UTPA to recover their attorney’s fees encourages individuals to pursue litigation to protect the public interest. Similarly, requiring unsuccessful defendants to pay the plaintiffs attorney’s fees discourages tradesmen from engaging in unfair methods of competition and unfair and deceptive acts in the conduct of trade or commerce, thereby also enforcing the purpose of the UTPA. We find the attorney’s fees provision of the UTPA is a legitimate tool which supports the policy objectives of the statute. Consequently, the attorney’s fees provision does not violate equal protection. 503 S.E.2d at 460. While the South Carolina Unfair Trade Practices Act mandates that the court award a successful plaintiff attorney’s fees and costs, the determination of the amount and reasonableness of the attorney’s fees award is the court’s responsibility. See Federal Deposit Ins. Corp. v. Aroneck, 643 F.2d 164, 166 (4th Cir.1981). The party seeking recovery of attorneys’ fees bears the burden of “[documenting the appropriate hours expended and hourly rates.” Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). As a general rule, attorney’s fees mandated by state statute are available in a diversity action. See Cotton v. Slone, 4 F.3d 176, 180 (2d Cir.1993) (citing Alyeska Pipeline Service Co. v. Wilderness Soc., 421 U.S. 240, 259 n. 31, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975)). The Fourth Circuit has held that state law is ordinarily to be followed in determining whether attorney’s fees are recoverable. See Culbertson v. Jno. McCall Coal Co. Inc., 495 F.2d 1403, 1405-06 (4th Cir.1974), cert. denied, 419 U.S. 1033, 95 S.Ct. 516, 42 L.Ed.2d 308 (1974). South Carolina courts have held that “there is no requirement that an attorney’s fee be less than or comparable to a party’s monetary judgment.” See Taylor, 503 S.E.2d at 462. In fact, the South Carolina Supreme Court has approved an award of attorney’s fees where the fee exceeded the actual recovery by approximately $10,000. See Baron Data Systems, Inc. v. Loter, 297 S.C. 382, 377 S.E.2d 296, 298 (1989). In light of the foregoing, this court awards plaintiff costs and attorney’s fees based on the fact that plaintiff was successful at trial on its SCUTPA cause of action. “In calculating an award of attorney’s fees, the Court usually should determine a lodestar figure by multiplying the number of reasonable hours expended times a reasonable rate.” See Brodziak v. Runyon, 145 F.3d 194, 196 (4th Cir.1998) (citing Daly v. Hill, 790 F.2d 1071, 1077 (4th Cir.1986)). The resulting “lodestar” figure is then considered to be the reasonable fee in the case. See Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); EEOC v. Service News Co., 898 F.2d 958, 965 (4th Cir.1990). In addressing the reasonableness of the fee award, the court must adhere to the Supreme Court’s mandate that “[a] request for attorney’s fees should not result in a second major litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40(1983). In order to determine the reasonableness of the fee request, the court considers the twelve (12) factors first set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974): (1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney’s opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney’s expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys’ fees awards in similar cases. Brodziak, 145 F.3d at 196; Service News Co., 898 F.2d at 965 (4th Cir.1990); Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 n. 28 (4th Cir.1978), cert. denied, 439 U.S. 934, 99 S.Ct. 329, 58 L.Ed.2d 330 (1978). The Fourth Circuit has held that there is no strict manner in which these twelve Johnson factors are to be considered and applied. See Service News Co., 898 F.2d at 965. Likewise, a district court is under no obligation to go through the inquiry of those factors that do not fit the circumstances of the particular case for which fees are sought. See In re A.H. Robins Co., Inc., 86 F.3d 364, 376 (4th Cir.1996), cert. denied, 519 U.S. 993, 117 S.Ct. 483, 136 L.Ed.2d 377 (1996). Nevertheless, “Johnson expressly contemplates that these factors be used both in calculating the hourly rate and the reasonable number of hours expended on a case.” See Trimper v. City of Norfolk, 58 F.3d 68, 76 (4th Cir.1995), cert. denied, 516 U.S. 997, 116 S.Ct. 535, 133 L.Ed.2d 440 (1995). 1. Computation of Reasonable Hourly Rate “The first step in setting a reasonable fee is determining the appropriate hourly rate.” Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir.1990). The reasonableness of the attorney’s hourly rate is determined by the “prevailing market rates in the relevant community.’ ” Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 175 (4th Cir.1994) (quoting Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). “The court must assess the experience and skill of the prevailing parties’ attorneys and compare their rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Alexander S. v. Boyd, 929 F.Supp. 925, 935 (D.S.C.1995) (citing Blum, 465 U.S. at 895 n. 11, 104 S.Ct. 1541). The following Johnson factors should be used to determine the appropriate hourly rate: two, three, four, five, eight, nine, and ten. A. Reasonable Hourly Rate (1) Novelty & Difficulty of the Question Raised The second Johnson factor requires the Court to review the novelty and difficulty of the questions raised. Much of the law involved in this case (e.g., breach of contract, construction of insurance policy language, and analysis of statutes of limitation) was, in and of itself, no more or less difficult than that found in many commercial cases. However, the SCUTPA issues in this case were unique and difficult. The case presented novel issues of law because it required counsel to apply “standard” commercial law principles to obscure workers’ compensation statutes, regulations and insurance standards that are almost never addressed, much less litigated, in the course of an ordinary commercial case. This case was complex. Plaintiff reconstructed an audit of the 1994 Policy that ERM had attempted to frustrate. Because ERM was a staff leasing company with diverse clients in numerous states, in order to verify (or complete) ERM’s records, plaintiff sought extensive document production from ERM’s clients and former agents which included having to obtain records held by the FBI. Plaintiff also reviewed and categorized an estimated 30,-000 documents in order to prepare for trial. Preparing for trial involved finding and preparing witnesses who could explain to the jury the following complicated issues: (i) the nature of the staff leasing business in general; (ii) the components of the South Carolina Workers’ Compensation Assigned Risk Plan; (iii) the method by which workers’ compensation premiums are calculated, particularly with respect to experience modification ratings and other factors applicable to staff leasing companies; (iv) the manner in which cancellation of a workers’ compensation policy becomes effective; (v) audit procedures and processes used by Liberty Mutual to calculate final premiums; (vi) the methods in which a staff leasing insured can defraud a workers’ compensation insurance company; (vii) the adverse public impact occasioned by employers who deceive their workers’ compensation carriers; (vii) the history of Liberty Mutual’s and ERM’s often strained relationship; (viii) how ERM’s conduct during the audit process frustrated Liberty Mutual’s ability to determine the nature and extent of ERM’s deceptive business practices; and (ix) the manner in which ERM deceived other workers’ compensation carriers. Finally, plaintiff had to present the witnesses and evidence at trial in a manner in which the jury could not only understand but find compelling. Obviously, plaintiffs attorneys succeeded in their presentation to the jury. (2) Skill required to properly perform the legal services rendered In Alexander S., Judge Joseph F. Anderson held that: “[t]he third Johnson factor requires the court to consider the skill required to properly perform the legal services rendered. In determining this, the court must determine whether the case presented plaintiffs’ counsel with novel or complicated issues.” 929 F.Supp. 925, 936 (D.S.C.1995). As discussed above, some of the legal issues in the case were both “novel” and complicated. See Taylor v. Medenica, 331 S.C. 575, 503 S.E.2d 458, 461 (1998) (affirming trial court’s award of attorney’s fees following a SCUTPA verdict in which the trial court opined that “UTPA actions were one of the most difficult types of cases to try”). At trial, plaintiffs counsel was required, inter alia, to: (i) present evidence detailing the relationship between a workers’ compensation insurance carrier, a staff leasing company insured and the South Carolina Workers’ Compensation Assigned Risk Plan; (ii) demonstrate to the jury that the insurance carrier was not acting unfairly or overreaching, as vigorously alleged by Defendants; (iii) show that the Defendant ERM, by and through its agents, officers and employees, not only breached its contract with Liberty Mutual, but also committed unfair and deceptive acts and practices in furtherance of a scheme to deprive Liberty Mutual of its rightful premium; (iv) explain to the jury complicated premium calculation and auditing principles impacted by ERM’s actions; and (iv) withstand defenses premised on, among others, statute of limitations, provisions of the applicable insurance policies, and shifting analysis of South Carolina Workers’ Compensation statutes and regulations. Over the course of an eight-day trial, defendants were able to call on four attorneys to share the burden of actually trying the case. Only one lawyer (Mr. Morrison) presented the entire case-in-chief to the jury on Liberty Mutual’s behalf. Plaintiff used both local counsel (Mr. Morrison/Moore & Van Allen and Holmes & Thomson) and national counsel (Ms. Szymoniak/Szymoniak Law Firm). Ms. Szymoniak, through her prior representation of Liberty Mutual in premium fraud actions, was uniquely qualified to direct the extensive pre-litigation investigation and conduct the majority of the pre-trial discovery document reviews, which were essential to plaintiff in order to develop the case. Mr. Morrison, a seasoned Charleston trial attorney with significant federal court experience, was also well-qualified to oversee the litigation. Mr. Morrison acted as plaintiffs lead counsel throughout the litigation and personally handled and/or supervised every court appearance. Defendant ERM also used both national counsel (Edward Fisher) and local counsel (W. Jefferson Leath, Jr.) and Mr. Leath, like Mr. Morrison, acted as defendants’ lead counsel up to and" during the trial of the case. Where the litigation is sufficiently complex to support the participation of both local and national counsel, both are important to the success of the plaintiffs claim, and attorneys’ fees can be awarded to both. See Rehabilitation Ass’n of Virginia, Inc. v. Metcalf, 8 F.Supp.2d 520, 529 (E.D.Va.1998). This court finds that both national and local counsel were important to the success of plaintiffs case. (3) Attorney’s opportunity costs in pressing the instant litigation The fourth Johnson factor addresses whether counsel was “forced to forego other legal work at the same billing rates in order to concentrate on the action.” ABC, Inc. v. Primetime, 67 F.Supp.2d 558, 565 (M.D.N.C.1999). In Alexander S. v. Boyd, Judge Joseph F. Anderson, Jr. found that participation in numerous court proceedings denies counsel the opportunity to work on other fee-producing cases. See 929 F.Supp. 925, 936 (D.S.C.1995). Here, based on the length and complexity of the discovery, pre-trial preparation and trial, as demonstrated by counsel’s time entries, it necessarily follows that plaintiffs counsel was unable to perform work for other clients. No adjustment to the hourly rate requested by plaintiffs counsel or to the lodestar figure is warranted based on the fourth Johnson factor. (4)Customary fee for like work The fifth Johnson factor requires the Court to consider the customary fee for like work. In making this determination, the court should consider various information, including affidavits, recent fee awards in comparable cases and “specific evidence of counsel’s actual billing practice or other evidence of actual rates which counsel can command in the market.” Buffington v. Baltimore County, 913 F.2d 113, 130 (4th Cir.1990), cert. denied, 499 U.S. 906, 111 S.Ct. 1106, 113 L.Ed.2d 216 (1991). As discussed above, the court has the discretion to make factual findings based on personal knowledge of the prevailing rates in the relevant market. See Rum Creek Coal Sales, 31 F.3d at 179. In the instant case, plaintiff seeks recovery of attorney’s fees at the precise hourly rates actually charged to, and paid by, Liberty Mutual. The requested rates, as set forth below, reflect plaintiffs counsel’s normal, ordinary and customary rates for similar complex litigation and, in fact, “reflect counsel’s actual billing practice” for this lawsuit, which operates strongly in favor of a finding that the rates are per se reasonable. Alexander S., 929 F.Supp. at 937. It is also noted that defendant has not objected to the rates charged by plaintiffs attorneys. Billing records of Holmes & Thomson, LLP demonstrate that Mr. Morrison charged Liberty Mutual a fee of $175.00 per hour from March, 1998 through April, 1999. Danny H. Mullís, Esquire, who was Mr. Morrison’s partner at Holmes & Thomson and assisted him in the case, also charged a fee of $175.00 per hour. Paralegal time was billed at $75.00 per hour. Billing records of Moore & Van Allen, PLLC, show that Mr. Morrison’s rate stayed at $175.00 per hour until May 2000, when it increased to $185.00 per hour. Moore & Van Allen associates who assisted Mr. Morrison, including Robert Varna-do and Richard Burke, billed Plaintiff at $150.00 per hour. Paralegal time at Moore & Van Allen was billed at $70.00 per hour. Similarly, Szymoniak Law Firm billing records demonstrate that partners in the firm charged $190.00 per hour; associates charged between $150.00 and $175.00 per hour; non-lawyer investigators billed $125.00 per hour; and paralegal time was billed at $85.00 per hour. The fees requested above are reasonable, both in the local community (i.e., the District of South Carolina), as well as in Florida (where the Szymoniak Firm is located). While the court generally finds the fees charged are reasonable, it will reduce the rate charged by Moore & Van Allen for summer associates from $90.00 per hour to $65.00 an hour, the average hourly rate of a paralegal in this district. (5) The Attorney’s Expectations at the Outset of Litigation The sixth Johnson factor, which generally implicates contingent fee arrangements, is irrelevant in the instant case because plaintiffs counsel did not have a contingency agreement with Liberty Mutual and “contingency multipliers may not be allowed in statutory fee cases.” Lucas v. Guyton, 901 F.Supp. 1047, 1057 n. 1. (D.S.C.1995) (citing Sheppard v. Riverview Nursing Centre, 870 F.Supp. 1369, 1380 (D.Md.1994)). (6) Amount in controversy and the results obtained “The most critical factor in calculating a reasonable fee award is the degree of sue-cess obtained.” Brodziak v. Runy