Opinion
No. 98A-04-002-RSG.
Submitted: September 2, 1999.
Decided: October 12, 1999.
Nancy E. Chrissinger, Esq., Chrissinger Baumberger, Wilmington, Delaware, for Employer-Appellant Delaware Supermarkets.
Gordon L. McLaughlin, Esq. and Richard T. Wilson, Esq., Wilmington, Delaware for Claimant-Appellee Terry Alphin.
ORDER
Upon review of the aforementioned petition for attorney's fees, it appears to this Court:
1. On May 26, 1999, the attorneys for Appellee Terry Alphin ("Claimant") submitted to this Court a Petition 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 May 18, 1999, this Court issued an Opinion and Order affirming the Industrial Accident Board's decision, which awarded Claimant temporary partial disability based on the findings that: (a) Claimant did not voluntarily refuse a job offer; and (b) the vocational rehabilitation expert's opinion testimony was proper. Further, this Court affirmed the decision of the Board awarding Claimant permanent partial impairment.
Shaffers Markets and Delaware Supermarkets v. Alphin, Del. Super., C.A. No. 98A-04-002, Gebelein, J. (May 18, 1999).
4. Claimant, having prevailed in successfully opposing Appellant Delaware Supermarkets ("Employer")'s appeal, is entitled to an award of attorney's fees and costs. Claimant seeks $6,628.45 based upon 1.4 hours of work by Gordon L. McLaughlin, Esq. at the rate of $225.00 per hour, and 21.6 hours of work by Richard T. Wilson, Esq. at the rate of $200.00 per hour, plus an additional one-third for the contingent nature of the litigation. Claimant has included $250.00 for transcription and copying costs.
Claimant initially requested an award for 1.7 hours of work performed by Mr. McLaughlin, and 24.6 hours of work performed by Mr. Wilson. After Employer responded with challenges to several billing entries, Claimant removed a duplicate billing of 2.6 hours and withdrew .20 hours from Mr. Wilson's total and .30 hours from. Mr. McLaughlin. According to this Court's calculations, the new totals are 1.4 hours for Mr. McLaughlin and 21.8 hours for Mr. Wilson.
5. Employer opposes an additional award of one-third and the proposed hourly rate of Mr. Wilson and Mr. McLaughlin. Employer further opposes the reimbursement for transcription and photocopying. No other challenge is made to the application.
Claimant originally requested $550 for copying and transcription costs but Claimant reduced this amount to $250 after Claimant was unable to locate a receipt for the copying costs. Claimant's request for $250 represents one-half of the cost of transcription of the IAB hearing.
Throughout Employer's seven page letter in response to the Petition for Attorney's Fees, Employer challenged the reasonableness of the number of hours billed by Mr. Wilson in the course of the appeal. Ultimately, however, the attorney for Employer conceded that she "would not reduce the amount of time claimed by Mssrs. Wilson and McLaughlin," but would decrease the hourly rate to $190 per hour for Mr. McLaughlin, and $100 per hour for Mr. Wilson.
6. Claimant requests an award calculated at the rate of $225.00 per hour for the work performed by Gordon L. McLaughlin, Esq., and at the rate of $200.00 for the work performed by Richard T. Wilson, Esq. The hourly charges are reasonable in light of the work produced and are consistent with the hourly fees charged by other attorneys in the area with similar experience and credentials. Additionally, this Court finds that considering the complexity of the issues involved and the work produced, 23.2 hours of time is reasonable.
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 $5,125 based on the following:
Appeal (1.4 hours x $225.00 per hour) = $ 315.00 (21.8 hours x $200.00 per hour) = 4,360.00
Petition (1.0 hours x $200.00 per hour) = 200.00
Costs = 250.00
Total Awarded: = 5,125.00
Based on the foregoing reasons, Appellee's Petition for Attorney's Fees is
GRANTED.
IT IS SO ORDERED.