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Warren v. Amstead Industries Inc.

Superior Court of Delaware

June 4, 2019

Ida Warren
v.
Amstead Industries, Inc.,

          Submitted: May 28, 2019

          Adam F. Wasserman, Esquire Ciconte Serba LLC.

          Linda L. Wilson, Esquire Marshall Dennehey Warner Coleman & Goggin,

          CRAIG A. KARSNITZ JUDGE

         Dear Counsel:

         By Opinion dated April 23, 2019 I reversed the decision of the Industrial Accident Board. I did so because I found the Board process to be in violation of Board Rules and principles of due process. In short I determined that the Board decided the case by addressing and resolving an issue that was not fairly raised in the pleadings. Because claimant succeeded on appeal I am required by Delaware Workers' Compensation Law to consider claimant's application for attorney's fees for work on the appeal.[1]

         I asked counsel to submit letter memoranda addressing the attorney's fee issue, and they have done so. The matter is ripe for resolution.

         Section 2350 (f) gives me substantial discretion to award attorney's fees to a successful claimant on appeal from the Board. I have discretion to allow a reasonable fee where the claimant's position in the hearing before the Board is affirmed on appeal. I "affirmed" the position taken by claimant concerning the lack of proper pleading on the primary issue upon which the Board decided the case. The only limit to the fee award is that it be reasonable.

         As it has seemed with all issues in this case the parties are in substantial and unfortunately, liverish disagreement. Claimant asks that I award almost $62, 000 in fees, and supports the request with an affidavit testifying to a time expenditure of 225 hours, [2]and an hourly rate of $275.00. Employer asserts emphatically that I should exercise my discretion and award nothing. In addition in a footnote in its letter addressing attorney's fees, Employer seems to reargue my decision.

         Claimant's position was accepted by me, and my decision will result in another hearing before the Board. It is exactly this circumstance which to me justifies an award of attorney's fees to a Claimant. The rub is what is reasonable.

         The seminal case in awarding fees to a workers' compensation Claimant is General Motors Corp. v. Cox.[3] In Cox the Delaware Supreme Court articulated the following factors to consider, most of which come from the Delaware Rules of Professional Conduct:

(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 that acceptance of the case would preclude other employment opportunities for the attorney.
(3) fees customarily charged in the community for similar legal services.
(4) the amount involved and the results obtained.
(5)time limitations imposed by the client or by the circumstances.
(6)the nature and length of the professional relationship.
(7)the experience, reputation, and ability of the lawyer or lawyers ...

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