Opinion
C.A. No: 97A-11-001-RSG
Date submitted: September 17, 1999
Date decided: November 18, 1999 Order Granted: February 8, 2000
Upon Appellee's Petition for Attorney's Fees: GRANTED.
ORDER
Upon review of the aforementioned petition for attorney's fees, it appears to this Court:
1. Appellee Gertrude Lawrence ("Claimant") petitions this Court for attorney's fees pursuant to 19 Del. C. § 2350(f).
19 Del. C. § 2350(f) provides: The Superior Court may at its discretion allow a reasonable fee to claimant's attorney for services on an appeal from the Board to the Superior Court and from the Superior Court to the Supreme Court where the claimant's position in the hearing before the Board is affirmed on appeal. Such fee shall be taxed in the costs and become a part of the final judgment in the cause and may be recovered against the employer and the employer's insurance carrier as provided in this subchapter.
2. An award of counsel fees under section 2350 requires an exercise of judicial discretion in light of the factors set forth in General Motors Corp. v. Cox. These eight factors are listed in what is now Delaware Lawyers' Rule of Professional Conduct 1.5(a). Also, the Court must take into account the employer's ability to pay and whether the attorney will receive any fees and expenses from any source other than the Board's award.
Del. Supr., 304 A.2d 55 (1973).
3. On March 15, 1999, this Court issued an Opinion and Order affirming the Industrial Accident Board's decision which denied Employer's petition to terminate Claimant's workers' compensation benefits for the occupational illness that Claimant sustained while employed by Appellant Bureau for the Visually Impaired ("Employer").
Bureau for the Visually Impaired v. Lawrence, Del. Super., CA. No. 97A-11-001, Gebelein, J. (March 15, 1999).
4. Claimant, having prevailed in successfully opposing Employer's appeal, is entitled to an award of attorney's fees. Claimant seeks $21,200 based upon 78 hours of work at the rate of $200.00 per hour, plus an additional one-third for the contingent nature of the litigation, and $400 for the preparation of the fee application.
5. Employer contests the fee of $200.00 per hour and suggests a rate of $85.00 per hour. Employer argues that the number of hours requested is excessive, and Employer suggests that Claimant's attorney billed for time that was not related to the Superior Court appeal.
Employer requested that Claimant's attorney reveal an average or "blended" rate that results from all types of representation since Employer believes, referring to a recentNews Journal article, that Claimant's attorney charges $85.00 per hour to defend the workers' compensation cases for New Castle County.
Employer argues that any time spent by Claimant's counsel in connection with the motion filed by the Attorney General's Office on the issue of whether board members should be joined as parties on appeal, was not relevant to the appeal and cannot be considered in a fee application.
6. Claimant requests an award calculated at the rate of $200.00 per hour for the work performed by Michael P. Freebery, Esq. The hourly charge is reasonable in light of the work produced and is consistent with the hourly fees charged by other attorneys in the area with similar experience and credentials. However, the Court does determine that an adjustment as to hours is appropriate. The bulk of Mr. Freebery's time was spent preparing to respond and then drafting a response to Employer's appeal. Based on the attorney's experience in the field, this Court finds 10.5 hours for research, and 5.0 hours for review of the files to be more reasonable.
The time sheets submitted by Claimant's attorney indicate that he spent 10.0 hours reviewing the files, 15.5 hours researching Delaware case law on the displaced worker doctrine, and 16.0 hours drafting the answering brief.
Additionally, the Court finds that 14.5 hours billed by Claimant's attorney in connection with a Motion to Dismiss filed by the Attorney General's Office to be unnecessary. The State's motion was a dispute between Employer and the State and was not related to Claimant's case. While Claimant's attorney was in attendance at an office conference regarding this motion, it should not have required any research on the part of the attorney as a determination of this issue could have no impact whatsoever upon Claimant's award. Therefore, the Court finds that one hour is adequate with regard to this motion and 13.5 hours is disallowed.
Time sheets submitted by Claimant's attorney contain the following references to the State's Motion to Dismiss: Research issue of Board Members as parties to appeal (3.3 hours); Research on appeal and pending motion (2.5 hours); Receive and review Motion to Dismiss (1.0 hour); Research re: Motion to Dismiss (4.3 hours); Prep for office conference on motion to dismiss (1.5 hours); Travel to and attend office conference (1.2 hours); Receive and review decision on Motion 12(b) (0.7 hours).
7. The Court finds that an additional one-third multiplier based on the contingent nature of the attorney's fee awarded is not justified in this case. This Court has noted that, although a one-third multiplier is not to be granted routinely, it is justified where the fee was contingent on success, the outcome was doubtful and the issues were novel and difficult. Where only the first factor (contingency of the result) exists, an award of one-third additional is not justified. Therefore, Claimant's request for the contingency fee must be denied.
Quality Car Wash v. Cox, Del. Super., C.A. No. 80A-DE-1, Balick, J. (Feb. 25, 1983) (Let. Op.) at 2.
State v. Pepper, Del. Super., C.A. No. 85A-MY-1, Steele, J. (Aug. 9, 1988) (Opinion).
8. Based on the forgoing, Claimant is awarded $11,300 based on the following:
Appellate process (54.5 hours x $200.00) = $10,900.00 Petition for attorney's fees (2 hours x $200.00) = 400.00
Total Awarded: = $11,300.00
Based on the foregoing reasons, Appellee's Petition for Attorney's Fees is GRANTED in the amount of $11,300.
IT IS SO ORDERED.