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McCabe v. Bayside Roofing, Inc.

Superior Court of Delaware, Kent

February 13, 2018

ROBERT McCABE, Claimant-below, Appellant,
BAYSIDE ROOFING, INC., a Delaware corporation, Employer-below, Appellee.

          Submitted: January 26, 2018

         Upon Appellant's Application for Attorneys' Fees Granted in part; Denied in part.

          Walt F. Schmittinger, Esquire and Gary E. Junge, Esquire of Schmittinger & Rodriguez, P.A., Dover, Delaware; attorneys for the Appellant.

          John J. Ellis, Esquire of Heckler & Frabizzio, Wilmington, Delaware; attorney for the Appellee.


          William L. Witham, Jr. Resident Judge

         Upon consideration of Robert McCabe's Motion for Attorneys' Fees, Bayside Roofing Inc.'s ("Bayside Roofing") Response, and the record of the case, it appears that:

         1. On December 27, 2016, the Industrial Accident Board (the "Board") denied Mr. McCabe's Petition for Additional Compensation Due to Injured Employee. Mr. McCabe appealed the Board's decision to this Court, contending: (1) the Board erred when it refused to consider various medical bills that he attempted to introduce at the hearing before the Board; and (2) the Board erred when it denied his petition for additional compensation allegedly still owed, as Mr. McCabe believed that the Board did not have the statutory authority to deny his claim, or, in the alternative, the Board's decision to deny his claim was not based on substantial evidence, nor was it supported by the Board's rules or established case law.[1] The Court concluded that the Board committed legal error when it suppressed the various medical bills because the Board imposed additional requirements for admission of the evidence that are not mandated by the Board's rules and procedures.[2] Therefore, the Board's decision was reversed and remanded with specific stipulations for the Board to consider.[3] Those proceedings have not yet taken place.

         2.Mr. McCabe has now filed a motion seeking an award of attorneys' fees for the work of his attorneys on the appeal to this Court, as well as his attorneys preparation of the petition for fees. Mr. McCabe contends that the Court's decision on appeal affirmed his position before the Board and that an award of attorneys' fees, to include a one-third contingency multiplier, is appropriate at this time. Bayside Roofing opposes Mr. McCabe's request. Bayside Roofing, relying heavily upon Murtha v. Continental Opticians, Inc, [4]and East v. International Game Technology, [5]contends that there is no basis to conclude that Mr. McCabe's position before the Board was affirmed by this Court on appeal or that there was any additional benefit resulting from the Court's remand. In addition, even if an attorney's fee is appropriate, Bayside Roofing does not believe that a one-third multiplier is proper because the issue of whether Mr. McCabe's medical bills were properly paid is neither novel nor complex.

         3. The standard governing an allowance of attorneys' fees for services of a claimant's attorney on appeal in this Court is set forth in 19 Del. C. § 2350(f). The statute provides, in relevant part, that the Court may allow a reasonable attorney's fee if "the claimant's position before the Board is affirmed on appeal." This language has been a part of the statute since 1994.[6] Prior to that, a claimant could recover attorneys' fees for an appeal only where the claimant both prevailed in the hearing before the Board and successfully defended against an appeal by the employer.[7] The new language was intended to expand the cases where a claimant may seek attorneys' fees at the appellate level to include those where the claimant appeals from an unfavorable or erroneous Board decision and his or her position before the Board is affirmed by the appellate court.[8]

         4. Since the 1994 amendment, this Court has on several occasions discussed the issue of attorneys' fees in cases where the claimant appealed from a Board decision and the Court remanded the case to the Board for further proceedings. In Murtha v. Continental Opticians, Inc. the court concluded, for reasons set forth therein, that, although the claimant was the appellant, its decision to remand the case for further proceedings was an affirmation of the employer's position before the Board, not the claimant's. Since the court did not affirm a position which the claimant had taken before the Board, the application for attorneys' fees at the appellate level was denied, notwithstanding the fact that the claimant was "successful" on appeal because she had achieved a remand. The Court also emphasized that attorneys' fees are not recoverable if the position advanced by the claimant in the appeal was not advanced before the Board.

         5. In Bythway v. Super Fresh Food Markets, Inc., [9] the Board denied a claimant's request that subpoenas be issued for certain witnesses. After the Board rendered its decision, the claimant appealed this and other issues. The appellate court ruled that the Board committed legal error when it denied the claimant's request for subpoenas and remanded the case to the Board for further proceedings. The claimant then moved for attorney's fees incurred in the appellate proceeding. The employer argued that the motion was premature, but the court rejected that contention. It having been established that the court had affirmed the claimant's position before the Board as to her right to subpoena witnesses, the court reasoned, a request for attorney's fees was not premature. Whether the claimant ultimately received a more favorable award in the remand proceeding or in a subsequent appeal was irrelevant.

         6. In Veid v. Bensalem Steel Erectors, [10] the claimant sought compensation for disfigurement. At the Board level, his attorney pointed out that disfigurement was compensable at a range of between 0 and 150 weeks and argued that compensation should be based upon various factors such as social and psychological impact, the shape and location of the disfigurement, and the like. The Board awarded three weeks of benefits. The employee appealed and argued that the Board had committed error by comparing his disfigurement to disfigurement in other cases. The Court agreed and remanded the case for further proceedings. The claimant then applied to the Court for attorneys' fees for the appeal. In concluding that attorneys' fees could be awarded, the Court observed that the claimant's position before the Board was that compensation should be based upon certain allowable factors. The Court's decision that the Board had considered improper factors, it reasoned, affirmed the claimant's position by implication.

         7. Turning to the matter subjudice, the Court finds that - despite the parties reliance upon numerous other decisions by the Court[11] - it is compelled to grant Mr. McCabe immediate relief in accordance with the Court's decisions in Bythway and Veid because the factual similarities between the cases warrant a similar outcome. First, like Bythway, the Court finds that it is irrelevant whether or not, on remand, Mr. McCabe is actually awarded benefits because it is clear to the Court that it did not merely remand the matter to the Board for clarification regarding the basis of the Board's decision. Rather, the Court explicitly reversed and remanded the Board's decision for legal error - the Board's improper application of its own rules and procedures - and the reversal, as explained hereafter in the context of Veid, was in Mr. McCabe's favor.[12] Thus, it is appropriate at this time for Mr. McCabe to seek attorneys' fees without waiting until the final outcome of the Court's remand to the Board.[13] Second, like Veid, the Court finds that its decision on appeal impliedly affirmed Mr. McCabe's position before the Board. More precisely, the Court notes that like the employee in Veid, Mr. McCabe provided the Board with the correct legal standard for the Board to consider. Yet, for some inexplicable reason, the Board ignored Mr. McCabe and instead considered additional factors/requirements not proscribed by the applicable rules and procedures. As the Court determined that the Board should not have considered such factors/requirements, the Court necessarily reversed the Board's decision for legal error and remanded the matter for the proper application of the Board's rules and procedures. Essentially, in effect, the Court's decision impliedly affirmed Mr. McCabe's position before the Board, as to the factors/requirements that should have been considered by the Board. In sum, the Court concludes that Mr. McCabe is entitled to an immediate award of attorneys' fees under 19 Del. C. § 2350(f).

         8. Having found that attorneys' fees are warranted, the Court is now required to make a determination as to the reasonableness of the amount requested. An award of fees under § 2350(f) requires an exercise of judicial discretion in light of the factors set forth in General Motors Corp. v. Cox.[14] These eight factors are listed in what is now Delaware Lawyers' Rule of Professional Conduct 1.5(a).[15] 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.[16]In this case, Mr. McCabe's attorneys have submitted a Certificate of Attorneys in support of their request for attorneys' fees. The fee ...

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