                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-6-2008

Bradley v. GMAC Ins Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3656




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"Bradley v. GMAC Ins Co" (2008). 2008 Decisions. Paper 708.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/708


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                                                 NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT




                        No. 06-3656




      LONSHYA BRADLEY; DONNA ROSAS, AS GUARDIAN OF
LONSHYA BRADLEY; DONNA ROSAS, IN HER OWN RIGHT,

                                            Appellants

                              v.

      GMAC INSURANCE COMPANY, also known as,
NATIONAL GENERAL INSURANCE COMPANY, also known as,
     NATIONAL GENERAL ASSURANCE COMPANY




       On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
                  (D. C. No. 03-cv-05103)
           District Judge: Hon. Louis H. Pollak




        Submitted under Third Circuit LAR 34.1 (a)
                    on April 11, 2008


   Before: SMITH, HARDIMAN and ROTH, Circuit Judges

              (Opinion filed August 6, 2008 )
                                       OPINION




ROTH, Circuit Judge:

       Before us is an appeal by Thaddeus Bartowski, counsel for Lonshya Bradley and

Donna Rosas, challenging the grant of attorney’s fees by the District Court. The District

Court awarded attorney’s fees of $17,952.47 on a petition requesting $37,372.75. Bartowski

challenges the District Court’s decision to deny him credit for certain hours he attributed to

this case, the District Court’s chosen percentage enhancement of the lodestar amount, and

the final calculation by the District Court determining his fee. Finding no error, we will

affirm the decision of the District Court.

I. BACKGROUND

       Lonshya Bradley was a minor pedestrian who was struck by an automobile. The

driver was insured by GMAC Insurance Co. Bradley had no personal or medical insurance

available and was a recipient of benefits from the Department of Public Assistance (DPA).

As a result of her injuries, DPA incurred medical expenses in excess of $400,000, for which

DPA had a lien against any possible recovery by Bradley.

       Bartowski represented Bradley in her lawsuit against GMAC. The lawsuit ultimately

settled for $225,000. DPA agreed to accept one-half of the settlement in satisfaction of its

lien, and to pay attorney’s fees of $37,500 and costs of $381.74.



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       Local Rule 41.2(c) in the Eastern District of Pennsylvania requires court approval

before attorney’s fees are paid out of any fund obtained for a minor or incapacitated person.

E.D. Pa. Civil Rule 41.2. Accordingly, when Bartowski requested attorney’s fees be paid out

of the settlement, the District Court required an hourly accounting pursuant to Polselli v.

Nationwide Mut. Fire Ins. Co., 126 F.3d 524, 532 (3d Cir. 1997). Bartowski requested that

the fee reflect 213.5 hours of work compensable at $300 per hour and enhanced by 16.7%

to reflect the risk inherent to a contingent fee case. The District Court excluded 41.9 hours

from consideration and concluded that the applicable billable rate should be $275 per hour

but did grant the requested 16.7% enhancement.

       With the District Court’s modifications, the total award of fees and costs that it found

to be appropriate was $55,452.47. The District Court then subtracted the $37,500 fee award

paid by the DPA from this amount to arrive at its final fee award of $17,952.47.

II. DISCUSSION

       The District Court had diversity jurisdiction pursuant to 42 U.S.C. § 1332. We have

jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review the reasonableness

of an attorney’s fee award for abuse of discretion by the District Court. Polselli, 126 F.3d

at 533 n. 11; accord In re LaRocca's Trust Estate, 246 A.2d 337, 339 (PA. 1968).

       A. Fee Calculation

       Bartkowski challenges the District Court’s calculation of his fee. He argues that it

erred in excluding certain hours from consideration and in applying a 16.7 percent



                                              3
enhancement to the final fee.

       The District Court provided ample explanation for its decision not to include the 41.9

hours at issue in calculating an appropriate fee. We find that the District Court did not abuse

its discretion for substantially the same reasons set forth in the District Court’s opinion.

       The District Court applied a 16.7 percent enhancement because that was the largest

enhancement that Bartowski asked for and the District Court found that it was justified. On

appeal, Bartowski argues that the 16.7 percent number was chosen because, together with his

proposed total hours and hourly rate, it would result in a fee equal to one third of the

settlement value. Had he known the District Court would reduce the hours and hourly rate

credited to him, he claims he would have asked for a higher percentage enhancement.

       However, the fact remains that Bartowski did not ask for more than a 16.7 percent

enhancement. The District Court is not required to guess at the attorney’s reason for

choosing to request a particular enhancement, much less to adjust the enhancement to better

effect that purpose. We find that the District Court did not abuse its discretion in declining

to do so.

       B. Fee Division

       After determining that the total fees and costs should be $55,452.47, the District Court

determined the amount due to Bartowski from Bradley’s portion of the settlement by

subtracting from that total the $37,500 already paid by the DPA. Bartowski argues that the

District Court instead should have divided the total costs in half, and treated the payment



                                              4
from each client separately. On this interpretation Bradley’s portion of his fee would be

$27,726.24.

       The local rule applied here places the decision of what fee is appropriate at the

discretion of the District Court. E.D. Pa. Civil Rule 41.2(c). The District Court applied the

standard of Polselli to determine the fee that Bartowski deserved for the entirety of his

efforts. Having done so, there was no requirement that the District Court divide the fee

between the DPA and Bradley. The District Court acted well within its discretion in ruling

in such a way that Bartowski received the overall fee to which it had concluded that he was

entitled. The only contrary authority that has been brought to our attention stands for the

quite separate proposition that successive attorneys are each entitled to their fees quantum

meruit. Mulholland v. Kearns, 822 F.Supp. 1161, 1169-70 (E.D. Pa. 1993).

III. CONCLUSION

       For the foregoing reasons, we will affirm the order of the District Court.




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