Opinion
C.A. No. K18A-08-001 WLW
08-11-2020
JAMES BLAIR, JR., Claimant-Below, Appellant, v. SMYRNA SCHOOL DISTRICT, Employer-Below, Appellee.
Walt F. Schmittinger, Esquire and Candace E. Holmes, Esquire of Schmittinger and Rodriguez, P.A., Dover, Delaware; attorneys for Appellant. William D. Rimmer, Esquire and Nicholas E. Bittner, Esquire of Heckler & Frabizzio, Wilmington, Delaware; attorneys for Appellee.
ORDER
Upon Appellant's Application for Attorneys Fees
Granted in part. Walt F. Schmittinger, Esquire and Candace E. Holmes, Esquire of Schmittinger and Rodriguez, P.A., Dover, Delaware; attorneys for Appellant. William D. Rimmer, Esquire and Nicholas E. Bittner, Esquire of Heckler & Frabizzio, Wilmington, Delaware; attorneys for Appellee. WITHAM, R.J.
INTRODUCTION
Before the Court are Appellant, James Blair, Jr.'s ("Mr. Blair"), Application for Attorneys' Fees and Appellee, Smyrna School District's ("the Employer"), Response in Opposition. As the facts stand presently, it appears to the Court that:
FACTUAL AND PROCEDURAL HISTORY
1. In a decision dated July 26, 2018, the Industrial Accident Board ("the Board") determined that Mr. Blair was entitled to a refund for the sick time he used and that the Employer was entitled to a set-off/credit for the amounts paid to Mr. Blair from his sick leave. Mr. Blair argued at the Board hearing that the sick leave he received was irrelevant because the Workers Compensation Act provided for sick leave to be a supplement to the worker's compensation benefits. Mr. Blair also requested an award of total disability benefits during the Board hearing. Subsequently, Mr. Blair appealed the Board's decision. This Court determined on April 5, 2019, that the Board's decision to award Mr. Blair sick days was contrary to the Workers' Compensation Act and remanded the matter for reconsideration.
Appellant's Application for Attorneys' Fees ("Appellant's Application") ¶ 1.
Appellant's Application ¶ 2; see also Tr. Blair, IAB Hearing No. 1365943 at 34.
Id.; see also Tr. Blair, IAB Hearing No. 1365943 at 42.
Id. In his submission, Mr. Blair limited his appeal to the Board's decision to award the Employer a set off.
See Id. at ¶ 3.
2. On July 19, 2019, Mr. Blair filed his first Application for Attorneys' Fees based on the Court's decision. The Court denied the Application without prejudice based on the fact that it was premature until the Board entered a final judgment on remand. On July 26, 2019, the Board found that it was unable to refund Mr. Blair's sick leave and award the Employer a set-off, thereby awarding Mr. Blair total disability benefits. Mr. Blair filed another Application for Attorneys' Fees, and the Employer responded in opposition.
Id. at ¶ 4.
Id.
Id. at ¶ 5.
Mr. Blair also requested that the Employer produce the log with the hours the Employer's counsel spent working on this matter. This request was ultimately denied by Commissioner's Order dated June 18, 2020.
PARTIES' CONTENTIONS
3. Mr. Blair claims that because on remand the Board issued an Order in his favor, he is now entitled to the award of attorneys' fees. Mr. Blair claims the amount he is entitled to is $14,150.00, which is based on 35.7 hours spent by the associates of Schmittinger & Rodriguez, P.A. at an hourly rate of $250.00 per hour, 4.5 hours spent by senior attorney Walt F. Schmittinger, Esquire at an hourly rate of $375.00 per hour, and an additional one-third of the total amount of the hourly fees for the contingent nature of the litigation. Mr. Blair contends that the issue involved in this case was of moderate complexity, which justifies the amount of the award he is seeking. He further claims that the issue of the refund of sick leave rarely, if at all, comes before the Board. Mr. Blair further claims that he argued the same position before the Board at the original hearing and on appeal and that his position was affirmed by the Court's decision.
Appellant's Application ¶ 7.
Id. at ¶ 8. Appellant also explains that associate counsel at Schmittinger & Rodriguez, P.A. actually spent 47.5 hours in furtherance of the appeal, but those hours were adjusted to reflect relative inexperience and correspondingly greater time spent on this case.
See Id. at ¶ 9. In a later submission, Appellant states that the issues involved were "novel and complex."
Id.
Claimant Below-Appellant's Reply to Employer Below-Appellee's Response and Objection to Application for Attorneys' Fees (Appellant's Reply) at 2.
4. Furthermore, Mr. Blair explains that he argued before the Board that sick leave he received was irrelevant because the Workers' Compensation Act provided for sick leave to be supplemental to the worker's compensation benefits. Mr. Blair states that he "specifically denounced the applicability of a credit/set-off," which was given to the Employer only because the Board awarded Mr. Blair a wrong remedy. Mr. Blair also points out that he specifically requested the award of total disability benefits at the Board hearing. He further explains that the Court later determined that the Board's decision to award sick days was contrary to the Worker's Compensation Act, which is consistent with the argument he advanced before the Board. Mr. Blair states that the fact that he did not make an argument against an alternative impermissible remedy is irrelevant, and he also was not required to file a Motion for Reargument prior to filing an appeal to this Court.
Id.
See Id.
Id. at 3.
Id.
See Id. at 4.
5. The Employer claims that Mr. Blair is not entitled to attorneys' fees because he did not succeed on the same position before this Court that he earlier brought before the Board. The Employer states that Mr. Blair never argued that the reimbursement of his sick time was impermissible or inappropriate, which is what this Court found on appeal. The Employer further points out that Mr. Blair never filed a Motion for Reargument in this case, which would have been the best way to proceed. Accordingly, the Employer states that Mr. Blair did not appeal the Board's decision to afford him sick leave and, therefore, did not succeed on it.
See Employer-Below/Appellee's Response and Objection to the Application for Attorney's Fees ("Appellee's Response") ¶ 2.
Id.
Id.
Id. at ¶ 3.
6. The Employer emphasizes that even if attorneys' fees are awarded in this case, this Court has a "broad discretion" to limit the fees to ensure that they are reasonable under the circumstances. In this case, the award at issue is $864.50, and Mr. Blair is asking for $14,150.00 in attorneys' fees. Based on this, the Employer argues that the requested amount is unreasonable. Furthermore, the Employer argues that the issue involved in this case was not novel or complex, which precludes the award of an additional one-third multiplier based on the contingent nature of this litigation.
Id. at ¶ 6.
Id.
See Id.
Id. at ¶ 9.
STANDARD OF REVIEW
7. First, Section 2350(f) of Title 19 of the Delaware Code governs the determination of whether attorneys' fees should be awarded. The statute provides that the Superior Court has discretion to award a "reasonable fee" on appeal "where the claimant's position in the hearing before the Board is affirmed on appeal." Accordingly, the award of the fees is appropriate when a claimant pursues the same position before the Board and on appeal. Furthermore, a claimant must be the one to file the appeal in order to be able to recover attorneys' fees.
See 19 Del. C. § 2350(f).
Id.
Murtha v. Continental Opticians, Inc. 729 A.2d 312, 318 (Del. Super. 1997).
8. Second, the Superior Court has discretion when determining the appropriate amount of attorney's fees, and the Court is guided by the factors outlined in General Motors Corp. v. Cox. The Cox factors are:
See General Motors v. Cox, 304 A.2d 55, 57 (Del. 1973).
"(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly[;] (2) [t]he likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other
employment by the lawyer[;] (3) [t]he fees customarily charged in the locality for similar legal services[;] (4) [t]he amount involved and the results obtained[;] (5) [t]he time limitations imposed by the client or by the circumstances[;] (6) [t]he nature and length of the professional relationship with the client [;] (7) [t]he experience, reputation, and ability of the lawyer or lawyers performing the services[;] (8) [w]hether the fee is fixed or contingent."Additional factors to consider are the employer's ability to pay and the requirement of an affidavit of the employee's attorney as to the "fees and expenses, if any, received or to be received from any other source."
Id.
Id.
DISCUSSION
A. The Award of Attorneys' Fees is Appropriate.
9. "[F]or this Court to exercise its discretion [to award attorneys' fees] it must first be determined whether the remand sub judice constituted an affirmance on appeal of the claimant's position before the Board as contemplated by § 2350(f)." Thus, the threshold issue is whether Mr. Blair's position in front of the Board was affirmed on appeal before this Court. "To determine whether the Employee's position has been affirmed on appeal, The Court is obligated to examine the Employee's arguments before the Board to determine whether they were consistent with the rulings of this Court."
Murtha, 729 A.2d at 315.
Veid v. Bensalem Steel Erectors, 2000 WL 33113801, at *2 (Del. Super. Dec. 28, 2000).
10. Here, Mr. Blair argued that he was entitled to total disability benefits before the Board. The Board, instead, awarded Mr. Blair sick leave and determined that the Employer was entitled to a set-off in light of this specific remedy. On appeal, this Court determined that Mr. Blair was, in fact, entitled to the total disability benefits. What complicates this analysis is the fact that Mr. Blair limited his appeal to the issue of the Employer's set-off. However, examining Mr. Blair's position as a whole before the Board and the Court's ruling on appeal leads to the conclusion that the position presented before the Board was later affirmed by this Court. Mr. Blair claimed that he was entitled to total disability benefits. The Court stated that the remedy awarded to him was contrary to the Workers' Compensation Act, which dictates that the appropriate remedy should have been the total disability benefits.
See Tr. Blair, IAB Hearing No. 1365943 at 33-34.
See Blair v. Delaware, IAB Hearing No. 1365943, (July 30, 2018).
See Blair v. Smyrna School District, Id. No. K18A-08-001, Witham, J. (Apr. 5, 2019) (ORDER).
Opening Brief of a Claimant-Below Appellant at 1. "The appeal is limited to the Board's award of a credit and set-off to the Employer. The award of fourteen days of total disability benefits is not being appealed."
11. Therefore, in light of the Board's error, the Court found it improper to consider the merits of Mr. Blair's appeal, which was limited to the issue of the set-off. The Court, however, still affirmed Mr. Blair's position presented before the Board at the Board hearing. Additionally, even though Mr. Blair limited his appeal to the issue of the set-off, he addressed the remedy as a whole in his brief submitted to this Court. Therefore, because Mr. Blair's position before the Board was ultimately approved on appeal, he is entitled to the award of attorneys' fees.
See Blair v. Smyrna School District, Id. No. K18A-08-001, Witham, J. (Apr. 5, 2019) (ORDER).
Id. at 11, 22.
B. The Appropriate Amount
12. As mentioned above, the Court has discretion in determining the appropriate amount of attorneys' fees to be awarded. The Court in this case carefully considered all the Cox factors. The first particularly relevant factor, which is also addressed in the parties' submissions, is "[t]he time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly." The parties disagree about the complexity of the issue involved. The Court agrees with the Employer in the assertion that this issue is not a novel or a particularly complex one.
Cox, 304 A.2d at 57.
13. The Board hears matters that involve issues of appropriate compensation for injured employees rather often. As the Employer points out, the counsel for both parties were able to cite to numerous existing cases on point in their submissions to this Court. Therefore, the Court does not see the issues involved in this case as novel and complex. The Court does, however, recognize the fact that one of the attorneys working on this case was not as experienced as her more senior colleague which is a relevant consideration when analyzing the complexity of the issues involved.
Appellee's Response ¶ 9.
See Pollard v. Placers, Inc., 1996 WL 527211, at *3 (Del. Super. Aug. 9, 1996).
14. Similarly, the award of the one-third multiplier is not justified in this case. This Court previously held that the multiplier was only appropriate when "[t]he fee was contingent on success [and i]n view of the novelty and difficulty of the questions involved, the outcome was doubtful." Again, nothing here suggests that the issue was novel and complex or that the outcome was doubtful based on the complexity.
Id. (quoting Quality Car Wash v. Cox, No. 80A-DE-1, Balick, J. (Feb. 25, 1983) (Letter Op.) at 2).
15. The next particularly relevant Cox factor in this case is "[t]he amount involved and the results obtained." Specifically, it is important to note that the Court finds it troubling when the request for attorneys' fees significantly exceeded the award. In McCabe, the requested attorneys' fees were three times the award. In this case, the fees requested are 16.37 times the award received. The Court found the request for attorneys' fees to be shocking where the request exceeded the award by much less. As stated above, nothing in this case justifies such an unusually high award. The Court sympathizes with the argument that many claimants cannot afford to hire reputable attorneys to pursue an appeal. However, nothing in Delaware law suggests that this notion alone justifies an extreme disproportion between the amount received and the fee awarded.
Cox, 304 A.2d at 57.
See McCabe v. Bayside Roofing, Inc., 2018 WL 835381, at *3 (Del. Super. Feb. 13, 2018).
The award received in this case amounted to $864.50.
See Veid v. Bensalem Steel Erectors, 2000 WL 33113801, at *3 (Del. Super. Dec. 28, 2000).
16. Finally, another principally relevant factor to consider in this case is the "[t]he experience, reputation, and ability of the lawyer or lawyers performing the services." In this case, the firm involved is a reputable firm specialized in the area of workers' compensation litigation. Undoubtedly, the attorneys working on the case put in a significant amount of time and effort into this matter. Even though the amount requested exceeds the appropriate award, the Court recognizes all the hard work that went into this litigation.
Cox, 304 A.2d at 57. --------
CONCLUSION
17. Therefore, the Court finds that the award of the attorneys' fees is appropriate in this case. The Court finds, however, that it is reasonable under the circumstances of this case to adjust the amount of the award. Accordingly, the appropriate amount of attorneys' fees is $4000.00, which is still 4.6 times the amount of Mr. Blair's award, but it also reflects the amount of work that went into this matter given its procedural history.
IT IS SO ORDERED.
/s/ William L. Witham, Jr.
Resident Judge WLW/dmh