Summary
finding 47.7 hours reasonable with an appeal that presented difficult questions
Summary of this case from Ron's Mobile Homes v. BrownOpinion
C.A. No. 04A-08-001 WLW.
Submitted: November 2, 2005.
Decided: February 14, 2006.
Upon Appellant's Application for Attorney's Fees. Granted in Part.
Mary F. Higgins, Esquire of the Law Offices of Mary F. Higgins, Odessa, Delaware; attorneys for the Appellant.
Christian G. McGarry, Esquire of Elzufon Austin Reardon Tarlov Mondell, P.A., Wilmington, Delaware; attorneys for the Appellee.
ORDER
Employee-Appellant, Charles Smith, filed an application for attorney's fees pursuant to 19 Del. C. § 2350(f) in the amount of $6,462.50 based on 51.7 hours at $125 per hour. Employer-Appellee, the Delaware State Housing Authority, did not file a response.
A detailed invoice specifically outlining the hours spent and the description of the work was attached to the application.
Employee-Appellant appealed to this Court from a decision of the Industrial Accident Board ("Board"), which terminated his total disability benefits even though he was still under a "no work" order issued by his doctor. In an Order dated September 30, 2005, this Court reversed and remanded the decision of the Board. Employee-Appellant now seeks attorney's fees for the work performed in conjunction with that successful appeal.
For the reasons set forth below, Employee-Appellant's application is granted in part.
Discussion
19 Del. C. § 2350(f) reads, "[t]he 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 . . . 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 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 chapter."
Initially, an employee who was unsuccessful before the Board was not entitled to attorney's fees if he or she appealed the Board's decision. However, in 1994, the Delaware General Assembly amended Section 2350(f) to allow an employee who received an unfavorable award before the Board to appeal and, if successful, petition for attorney's fees. In Murtha, this Court opined, "[t]he clear legislative intent of the amendment is to create a right for a claimant to seek an attorney's fee for the time expended at the appellate level when a claimant appeals an unfavorable or erroneous Board decision and claimant's position before the Board is affirmed on appeal." Additionally, in Digiacomo v. Board of Public Education in Wilmington, the Supreme Court observed, "[t]he touchstone for an award of counsel fees on appeal is success."
See Alloy Surfaces Co. v. Cicamore, 221 A.2d 480 (Del. 1966).
Murtha v. Cont'l Opticians, Inc., 729 A.2d 312 (Del.Super. 1997).
507 A.2d 542, 546 (Del. 1986).
In Pollard v. The Placers, Inc., the Supreme Court affirmed a decision of this Court, which awarded attorney's fees to an employee who received an unfavorable award from the Board and appealed to the Superior Court. On appeal, the Superior Court reversed and remanded her case, instructing the Board to provide additional findings and explanations. The employee then filed an application for attorney's fees, which the Superior Court granted at a reduced rate. In upholding the Superior Court's decision, the Supreme Court stated:
703 A.2d 1211 (Del. 1997).
The statute is intended to relieve one of the burdens of civil litigation by providing a mechanism for the payment of successful employee's attorney's fees. . . . [The court] should consider the factors enumerated in the Delaware Lawyers' Rules of Professional Conduct, Rule 1.5, and two additional factors — the employer's ability to pay and whether the Board's award is the exclusive source of the attorney's fees.
The Professional Conduct Rule 1.5 factors are:
(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) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.
Upon reviewing employee-appellant's attorney's invoice, I made a few reductions with respect to time spent on research and revision, otherwise, I conclude that the fees are reasonable. Regarding the factors in Rule 1.5, I find that this case presented relatively difficult questions, which required a fair amount of time and skill from the attorney. An hourly rate of $125 is reasonable. The amount of attorney's fees awarded is equitable in light of the fact that the attorney was successful on appeal. Also, the attorney is experienced and capable. As for the two additional factors mentioned in Pollard, I conclude that Employer-Appellee is able to pay and the Board's award is the only source of attorney's fees. Therefore, I hold that Employee-Appellant should be awarded attorney's fees in the amount of $5,962.50.
I reduced the Lexis research for the opening brief from 6.30 hours to 5.30 hours, I reduced the final revisions to OP from 7.20 hours to 5.20 hours, and I reduced the review and research of additional cases for the reply brief from 4.00 hours to 3.00 hours. This results in a reduction of 4 hours, so the total amount of hours expended is now 47.7.
This amount is based upon 47.7 hours of work at the rate of $125 per hour.
Based on the foregoing, Employee-Appellant's Application for Attorney's Fees is granted in part.
IT IS SO ORDERED.