Opinion
C.A. No. 01A-07-009
Submitted: June 12, 2002
Decided: June 20, 2002
Upon Claimant's Application for Attorneys' Fees. Denied.
Walt F. Schmittinger, Esq. of Schmittinger Rodriguez, P.A., Dover, Delaware, for Claimant Below-Appellant.
Anthony M. Frabizzio, Esq. of Heckler Frabizzio, Wilmington, Delaware, for Employer Below-Appellee.
ORDER
This 20th day of June, 2002, upon consideration of the submissions of the parties, it appears to the Court that:
1. Counsel for Richard Thomason (the "claimant") has submitted an application for attorneys' fees pursuant to 19 Del. C. § 2350(f), related to representation of the claimant in an appeal from the Industrial Accident Board ("Board"). Counsel seeks an order granting attorneys' fees for the appeal in the amount of $3,388.00. This is based on 15.4 hours of work at an hourly rate of $165.00 per hour, plus an additional one-third for the contingent nature of the litigation.
2. The Employer opposes an award of attorneys' fees related to the prior appeal because, although the case was remanded to the Board, it is not yet apparent that the claimant will prevail, or gain any benefit in the matter.
3. In the prior appeal, this Court found that the Board based its award of attorneys' fees on improper or inadequate grounds and remanded the case for a reassessment of the proper factors. Procedurally, the Board was instructed to apply the statutory provision effective at the time of the institution of the present claim (i.e. 19 Del. C. § 2320 (10)a. effective prior to July 1, 2001). The implementation of this procedural mandate requires a lower cap on the award than the cap utilized by the Board in its original opinion.
The Board used the new statute (which caps attorneys' fees at 30% of the award or $7,373.50) to render its prior decision on attorneys' fees. Upon remand, the Board is instructed to utilize the older version of the statute which capped attorneys' fees at 30% of the award or $2,250.
4. For this reason, the "attorneys' fee application is premature [because it is] filed before a final judgment establishing an increase in [the] claimant's award." Only if "an appellate court reverses the Board's decision due to legal error and where the reversal is in claimant's favor, then an application for attorneys' fees may be filed after the determination of the legal error occurs."
Bythway v. Super Fresh Food Mkts, Inc., 1999 WL 1568615 at * 3 (Del.Super.Ct.).
Id.
5. In the present case there has been no final judgment establishing an increase in the claimant's award. Nor will there be an increase unless the Delaware Supreme Court reverses this Court's procedural decision to have the Board, upon remand, apply the statutory provision effective at the time of the institution of the present claim (i.e. 19 Del. C. § 2320 (10)a. effective prior to July 1, 2001). Likewise, although this Court did reverse the Board's decision due to legal error (in that the Board applied the wrong effective statute), the reversal was not in claimants favor; therefore, no attorney's fee may be awarded on the basis of the reversal.
This Court previously determined that in Chrysler Corp. v. Viglino, 260 A.2d 160, 161 (Del. 1969), the Delaware Supreme Court stated that the retroactive application of a statutory amendment increasing attorney's fees is a procedural issue, and the amended statute was "applicable to cases instituted [i.e. filed] after its adoption." For this reason, the Court was constrained to remand the case under the old statutory fee cap because that case was filed before the new statutory fee scale. See Thomas v. Temp Control, Del. Super. Ct., C.A. No. 01A-07-009, Witham, J. (May 30, 2002) (ORDER). The Court does note, however, that with respect to public policy, perhaps the more desirable procedural rule (at least in the workers comp arena) would be to apply the effective date of new statutory attorneys' fee scales as of the time of the award. This is what plaintiff had previously argued in his appeal; however, this Court was constrained under Viglino. Such a rule would prevent the withdrawal and refiling of numerous Petitions at the Board as claimants seek to take advantage of the new fee scales. Additionally, this rule would give effect, as soon as possible, to the statutory purpose of preventing depletion of workers comp awards by attorneys' fees.
This is because the prior award was capped at $2,400 which is beyond the cap allowable upon remand.
6. Moreover, "[t]he Court finds than an additional one-third multiplier based on the contingent nature of the attorney's fee awarded is not justified in this case." Such a 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." For this reason, "[c]laimant's request for the contingency fee must be denied."
Meadows v. Linton, 2000 WL 33114379 at *1 (Del.Super.Ct.).
Id. (internal citations omitted).
Conclusion
7. An application for an award of attorney's fees should not be filed simply because this Court remanded a case back to the Board. The attorneys' fee application is premature here because it is filed before a final judgment has established an increase in the claimant's award.
Lucas v. Leaseway Motorcar Trans., 1999 WL 1568383 at *3 (Del.Super.Ct.).
For this reason, the application for attorneys' fees is DENIED.
IT IS SO ORDERED.