      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ALICIA WEDDLE, as Personal                 )
Representative of the Estate of            )
JOSEPH GONZON, Deceased,                   )
                                           )
             Claimant/Appellant,           )
                                           )
      v.                                   )         C.A. No. N18A-06-004 ALR
                                           )
BP AMOCO CHEMICAL                          )
COMPANY,                                   )
                                           )
             Employer, Appellee.           )

                             Submitted: May 29, 2019
                              Decided: June 13, 2019

             Upon Application for Attorneys’ Fees and Alternatively
                  Motion to Modify or Amend the Judgment
                DEFERRED in Part and GRANTED in Part

                                      ORDER

      Upon consideration of the Application for Attorneys’ Fees and Alternatively

the Motion to Modify or Amend the Judgment filed by Claimant/Appellant Alicia

Weddle, as Personal Representative of the Estate of Joseph Gonzon, Deceased

(“Claimant”); the Response thereto filed by Employer/Appellee BP Amoco

Chemical Company (“Employer”); the Superior Court Rules of Civil Procedure; the

facts, arguments, and legal authorities set forth by the parties; statutory and

decisional law; and the entire record in this case, the Court hereby finds as follows:
      1.      Claimant/Appellant applies for an attorneys’ fee award following a

successful Superior Court appeal from an Industrial Accident Board (“IAB”)

decision pursuant to 19 Del. C. § 2350(f). In that appeal, the Court reversed the

IAB’s dismissal of the workers’ compensation petition filed on behalf of the late

Joseph Gonzon and remanded the matter to the IAB for determination on the merits.1

Alternatively, Claimant requests this Court modify or amend its decision pursuant

to Superior Court Civil Rule of Procedure 59(d) to retain jurisdiction over this

application for attorneys’ fees pending the final decision of the IAB on remand.

      2.      Pursuant to 19 Del. C. § 2350(f), the Superior Court has discretion to

award reasonable attorneys’ fees for an appeal from an IAB decision “where

claimant’s position in the hearing before the [IAB] is affirmed on appeal.”2 “The

legislative intent behind the statute creates a right for a successful claimant to obtain

attorneys’ fees for the time spent preparing for the appeal from an unfavorable [IAB]

decision.”3

      3.      In addressing the issue of what constitutes an affirmance of the

claimant’s position before the IAB, the Court explained that “in cases where the

claimant is the appellant, the claimant must have pursued the specific position they




1
  Weddle v. BP Amoco Chem. Co., 2019 WL 1896503 (Del. Super. Apr. 26, 2019).
2
  19 Del. C. § 2350(f).
3
  Elliott v. State, 2012 WL 7760033, at *1 (Del. Super. Dec. 24, 2012).

                                           2
are arguing on appeal at the [IAB] proceeding.”4 The particular action taken by the

Court on appeal, whether it is remanding, reversing, or requesting clarification from

the IAB, is not the determining factor. Rather, it is this Court’s affirming of a

claimant’s position before the IAB that determines whether the Court will grant

attorneys’ fees.5

      4.     Where, as occurred here, the Court finds in favor of a claimant due to

the IAB’s legal error and reverses the IAB’s decision, “the claimant may seek

attorneys’ fees without waiting until the final outcome of the case.”6 Nevertheless,

in the interest of judicial economy and the avoidance of piecemeal appellate practice,

the Court has declined to act on an application for attorneys’ fees where there has

not yet been a final decision of the IAB.7

      5.     In the interest of judicial economy, deferral of an award of attorneys’

fees pursuant to 19 Del. C. § 2350(f) is appropriate. To ensure the parties’ rights are

properly preserved, the Court will modify its April 26, 2019 Opinion to clarify that

the Superior Court retains jurisdiction of the matter for consideration of an award of

attorneys’ fees pursuant to 19 Del. C. § 2350(f).




4
  Murtha v. Continental Opticians, Inc., 729 A.2d 312, 317-318 (Del. Super. 1997).
5
  Elliott, 2012 WL 7760033, at * 2.
6
  Id.
7
  Holben v. Pepsi Bottling Ventures, LLC, 2019 WL 549036, at *1 (Del. Super. Feb.
11, 2019) (citing Murtha, 729 A.2d at 320).

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     NOW, THEREFORE, this 13th day of June, 2019, Claimant’s

application for attorneys’ fees in this Court is DEFERRED until the IAB

performs its function on Remand. The Court’s April 26, 2019 Opinion is

hereby MODIFIED to clarify that the Superior Court retains jurisdiction over

this application for attorneys’ fees pending the final decision of the IAB on

Remand.

     IT IS SO ORDERED.



                                                                                                                            Andrea L. Rocanelli
                                         ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____




                                         The Honorable Andrea L. Rocanelli




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