Opinion
11-P-389
12-22-2011
AIM MUTUAL INSURANCE COMPANY v. ALEXANDER OKRASKA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal arises out of an action for recoupment; the insurer (AIM) was authorized to discontinue payments previously agreed upon with the injured employee (defendant) pursuant to G. L. c. 152, § 35, which had resulted in an overpayment in the amount of $4,121.31. AIM's ensuing action for recoupment was dismissed, and the defendant now appeals from the subsequent denial of his request for attorney's fees and costs.
Discussion. The facts are undisputed. The issue before us is whether the defendant is entitled to attorney's fees under either G. L. c. 231, § 6F, or G. L. c. 152, § 13A(5).
General Laws c. 231, § 6F. General Laws c. 231 requires that an appeal from an adverse ruling to a fee request by a judge of the Superior Court be made to a single justice of this court. G. L. c. 231, § 6G. For this reason, as well as others cited below, the issue is not properly before us.
Rule 59 of the Massachusetts Rules of Civil Procedure, 365 Mass. 827 (1974). The defendant's notice of appeal was filed before the judge ruled on his postjudgment motion for reconsideration, hence it was premature and is of no effect. See Mass.R.A.P. 4(a), as amended, 430 Mass. 1603 (1999).
Rule 60(b) of the Massachusetts Rules of Civil Procedure, 365 Mass. 828 (1974). Were we to consider the defendant's motion for reconsideration as a motion pursuant to rule 60(b), it would still not avail him. The claim that fees pursuant to G. L. c. 152, § 13A(5), should be (or, as the defendant asserts, must be) awarded appears to have been raised for the first time in the postjudgment motion, hence it is not before us. See R.W. Granger & Sons, Inc. v. J & S Insulation, Inc., 435 Mass. 66, 74 (2001). Were we to deem it properly before us on appeal, we note that the defendant provided the judge with no supporting materials whatsoever and, assuming § 13A(5) applies to actions in the Superior Court, the statute allows the fee to be reduced to any appropriate amount, including zero. G. L. c. 152, § 13A(5). Thus we see no abuse of discretion in the judge's denial of fees.
We do not reach the issue of whether G. L. c. 152, § 13A, applies to actions in the Superior Court.
Because the defendant could have had no reasonable expectation of reversal, we consider the appeal to be frivolous. See Love v. Pratt, 64 Mass. App. Ct. 454, 459 (2005). We therefore exercise our discretion and award AIM the attorney's fees it incurred on appeal. See Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979). The payment of such fees is to be divided equally between the defendant and his counsel. AIM may submit a petition for appellate attorney's fees to this court in the manner prescribed in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), within twenty days of the date of this memorandum and order. The defendant may respond to the petition within twenty days of said filing.
Judgment affirmed.
By the Court (Berry, Brown & Grainger, JJ.),