Henderson v. Northeast Tool, Monroe v. Raylar Ltd. Partnership et. al.,
Smith v. Pompanoosuc Mills (Oct. 10, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Carlton Henderson File No.: C-27112
v. E-672
Northeast Tool F-21371
JoAnne Monroe By: Barbara H. Alsop
v. Hearing Officer
Raylar Ltd. Partnership et al. For: Mary S. Hooper
Commissioner
David Smith
v. Opinion No.: 59-96WC
Pompanoosuc Mills
Ruling on Post-Hearing Motions for Attorney's Fees and/or Costs
PROCEDURAL HISTORY
In Carlton Henderson v. Northeast Tool, Opinion No. 48-96WC, the claimant was denied an award of attorney's fees and costs even though he prevailed in some measure. Thereafter, his attorney filed a Motion to Reconsider Denial of Award of Costs and Fees, with an admission that "[c]ounsel's failure to [provide the documents necessary for the Commissioner to decide whether to award costs and fees] was inexcusable and he should have provided the documents in a timely fashion." The defense has objected to the motion on the grounds that the failure to file the appropriate documents was inexcusable.
In JoAnne Monroe v. Raylar Ltd. Partnership et al., Opinion No. 54-96WC, the claimant was denied an award of costs even though she was awarded attorney's fees because she did not supply any documentation regarding her costs in presenting her claim. Thereafter, her attorney wrote to the hearing officer, stating "...in my proposed findings of fact and proposed order, I had asked that the costs of depositions be reimbursed to JoAnne. Please reconsider the reimbursement for the depositions." In spite of the inadequate form of the request, I am treating this as a formal Motion to Reconsider, and acting accordingly. A review of the claimant's proposed findings of fact and proposed order reveals that the claimant only requested "reimbursement for out of pocket expenses that are related to her back and knee, interest, attorney's fees and any other compensation/award seen appropriate." The claimant's award of attorney's fees was based on a lien previously filed. The claimant did not file any documents at the time of the filing of her proposed findings and rulings in support of her fees or costs.
In David J. Smith v. Pompanoosuc Mills, Opinion No. 47-96WC, the claimant was awarded costs but not attorney's fees. The claimant had produced an itemization of the hours spent by his attorney in prosecuting the claim, but had failed to file a copy of his fee agreement with the Department as required by Rule 10(g). The claimant was denied attorney's fees not only for failing to comply with requirements of Rule 10(g) but also because "while the claimant has prevailed at least minimally, he has not done so on the basis for which he sought a hearing."
The claimant then filed a Motion to Amend Opinion, including the fee agreement, and thereafter filed an affidavit in support of the Motion to Amend, in which counsel conceded a failure to comply with the provisions of Rule 10(g) in a timely manner.
DISCUSSION
The Workers' Compensation Act envisages the award of costs and attorney's fees in the event of a successful claim that has been taken to hearing. 21 V.S.A. 678 provides for the mandatory award of costs, while the award of attorney's fees is discretionary. Rule 10 of the Workers' Compensation and Occupational Disease Rules provides the mechanism for an award of costs and fees. It requires the prevailing claimant to produce no later than the date upon which proposed findings of fact and conclusions of law are filed evidence establishing the amount and reasonableness of the fees and costs requested. Rule 10(d). A request for fees will not be considered until the filing of the fee agreement. Rule 10(g). The Commissioner has discretion to award fees and costs even if the supporting documentation is not timely filed. Rule 10(d).
In order to obtain relief from an order denying recovery of attorney's fees and/or costs, it is incumbent upon the petitioner to establish some basis for granting the relief. It is not sufficient merely to state that neglect has occurred. Guidance for a standard may be found in the Rules of Civil Procedure and cases decided based on the rules, particularly those that allow relief from an order or judgment for excusable neglect. In Miller v. Ladd, 140 Vt. 293 at 297 (1981), the court stated that "[e]xcusable neglect requires, at a minimum, some reasonable basis for noncompliance within the allotted time period.... To permit an enlargement of time on the grounds proffered would have the effect of reading out of the rule any limits upon extensions of time." (citations omitted) As said in Margison v. Spriggs, 146 Vt. 116 at 120 (1985), "[c]ounsel's careless ignorance of the Court's rules of procedure...is not the sort of "excusable neglect" contemplated by [the rules].'" (citation omitted)
In Henderson, counsel candidly admitted that his failure to comply with the rules was "inexcusable" and that he would not repeat his mistake again. While his candor is refreshing, it avails him nought. Inexcusable neglect will not suffice as support for his motion here. This ruling may have the salutary effect of insuring that he does not repeat his error again.
In Monroe, counsel neither filed an itemization nor in any way provided the necessary information to allow for an award. There was also no acknowledgment, in spite of the ruling in the original decision, that the claimant was notified by the terms of the decision of the necessity for evidence to support her claim. The failure to rectify the original error prevents an award of costs.
In Smith, counsel filed all of the requisite material with the exception of the fee agreement at the time required. Upon notice of her failure to provide the fee agreement, counsel filed a Motion to Amend, and attached to it the fee agreement, which provides for a fee of one third of any amount recovered. Subject to the restrictions of Rule 10(a), this fee agreement is acceptable. Moreover, in this case, it is clear that claimant's failure to comply with the full extent of the rule was de minimis, having filed all of the required itemizations at the appropriate time. Therefore, attorney's fees will be awarded.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it is hereby ordered that:
1. Carlton Henderson's request for attorney's fees be denied;
2. JoAnne Monroe's request for costs be denied; and
3. Lumber Mutual, or in the event of its default Pompanoosuc Mills, pay to or on behalf of David Smith attorney's fees in the amount of 20% of the amount awarded in Opinion No. 47-96WC, or $3,000.00, whichever is less.
DATED at Montpelier, Vermont this 10th day of October 1996.
____________________________
Mary S. Hooper
Commissioner