IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ROBERT McCABE,
Clairnant-below, : C.A. No. K17A-02-001 WLW
Appellant, : Kent County
v.

BAYSIDE ROOFING, INC., a
Delaware corporation,

Employer-below,
Appellee.
Submitted: January 26, 2018
Decided: February 13, 2018
ORDER
Upon Appellant’s Application for Attorneys’ Fees
Granted in part,' Dem`ed in part.
Walt F. Schrnittinger, 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.

WITHAM, R.J.

Robert McCabe v. Bayside Roofing. Inc.
C.A. No. Kl7A-02-001 WLW
February 13, 2018

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:

l. 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: (l) 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 altemative, 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.l 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

 

l McCabe v. Bayside Roofing, Inc., 2017 WL 5607026 (Del. Super. Nov. 15, 2017).
2 See id.

3 Speciiically, the Court ordered the Board to consider if:

l. Bayside Rooflng received notice of Mr. McCabe’s Pre-Trial Memorandum
Amendment prior to thirty (3 0) days before the hearing, held on December 15, 2016,
in accordance with IAB Rule 9(6)(a);

Robert McCabe v. Bayside Roofing. Inc.
C.A. No. Kl7A-02-001 WLW
February 13, 2018

proceedings have not yet taken place.

2. Mr. McCabe has now filed a motion seeking an award of attomeys’ 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 attomeys’ 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 attomey’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. § 23 50(f). The

 

2. Bayside Roofing properly objected to the proposed amendment in accordance with
IAB Rule 8.

3. The substance of the proposed amendment should be excluded pursuant to the
Delaware Rules of Evidence.

4 Murtha v. Continental Opticians, Inc., 729 A.2d 312 (Del. Super. 1997).

5 East v. Int’l Game Tech., 2011 WL 3568457 (Del. Super. Jun. 30, 2011).

3

Robert McCabe v. Bayside Roofing. Inc.
C.A. No. Kl7A-02-001 WLW
February l3, 2018

statute provides, in relevant part, that the Court may allow a reasonable attomey’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 attomeys’
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 attomeys’ 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 Upticians, 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 attomeys’ fees at the

appellate level was denied, notwithstanding the fact that the claimant was

 

6 Murtha, 729 A.2d at 317.
7 Id. at 316.

8 Id. at 317.

Robert McCabe v. Bayside Roofing. Inc.
C.A. No. Kl7A-02-001 WLW
February l3, 2018

“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. ln Bythway v. Super Fresh Food Markets, Inc.,9 the Board denied a
claimant’s request that subpoenas be issued for certain witnesses. Af`ter 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 attomey’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
attomey’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. ln Veia' 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

 

9 Bythway v. Super Fresh Food Markets, Inc., 1999 WL 1568615 (Del. Super. Nov. 30,
1999).

10 Veid v. Bensalem Steel Erectors, 2000 WL 33113801 (Del. Super. Dec. 28, 2000).

5

Robert McCabe v. Bayside Roojng. Inc.
C.A. No. Kl 7A-02-001 WLW
February 13, 2018

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 attomeys’ fees for the appeal. In concluding that attomeys’ 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. Tuming to the matter sub judice, the Court finds that - despite the parties
reliance upon numerous other decisions by the Court11 - 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

 

11 East v. Int’l Game Tech., 2011 WL 3568457 (Del. Super. Jun. 30, 201 1) (holding that the
decision on appeal did not affirm the claimant’s position before the Board where a remand was
ordered for filrther clarification because the Board neglected to clearly set forth its reasoning);
Chandler v. Pinnacle Fooa's, 2010 WL 3447551 (Del. Super. Aug. 23, 2010) (holding that it was
premature for the Court to award attomeys’ fees because, even though the Court agreed with the
claimant’s position before the Board, it remained to be seen whether the claimant would actually be
awarded anything by the Board on her claim for benefits); F landers v. Pem'nsula on the Indian River,
C.A. No. 08A-03-002 (Del. Super. Dec. 29, 2008) (holding that the decision on appeal affirmed the
claimant’s position before the Board where a remand was ordered for the Board’s error in failing to
award medical expert witness fees); Wooa'all v. Playtex Products, Inc., 2002 WL 32067548 (Del.
Super. Dec. 24, 2002) (holding that the decision on appeal affirmed the claimant’s position before
the Board where a remand was ordered for the Board’s failure to give adequate consideration to the
Cox factors); Murtha, 729 A.2d 312.

Robert McCabe v. Bayside Roofing. Inc.
C.A. No. Kl7A-02-001 WLW
February 13, 2018

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
attomeys’ 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 Veia', 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 attomeys’ fees

 

12 See Bythway, 1999 WL 1568615 at *3 (holding that “where an appellate court reverses the
Board’s decision due to legal error and where the reversal is in the claimant’s favor, then an
application for attomeys’ fees may be filed afier the determination of the legal error occurs”).

13 See id.

Robert McCabe v. Bayside Roofing. Inc.
C.A. No. Kl7A-02-001 WLW
February 13, 2018

under 19 Del. C. § 2350(f).

8. Having found that attomeys’ 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. Co)c.14 These eight factors are listed in
what is now Delaware Lawyers’ Rule of Professional Conduct l.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
ln this case, Mr. McCabe’s attorneys have submitted a Certificate of Attorneys in
support of their request for attomeys’ fees The fee applied for is $l9,337.50 based
on 67.6 hours work by Gary E. Junge, Esquire, at an hourly rate of $250.00 per hour,
and 6.5 hours work by Walt F. Schmittinger, Esquire, at an hourly rate of $3 75 .00 per
hour.

9. At a hearing on this matter, Bayside Roofing contended that the amount of

 

14 General Motors Corp. v. Cox, 304 A.2d 55 (Del. 1973).

15 The factors to be considered are: (l) 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, if apparent to the client, that the acceptance of the particular employment will preclude
other employment by the lawyer; (3) The fees customarily charged in the locality for similar legal
services; (4) The amount involved and the results obtained; (5) The time limitations imposed by the
client or by the circumstances; (6) The nature and length of the professional relationship with the
client; (7) The experience, reputation, and ability of the lawyer or lawyers performing the services;
and (8) Whether the fee is fixed or contingent.

16 Cox, 304 A.2d at 57.

Robert McCabe v. Bayside Roofing. Inc.
C.A. No. Kl7A-02-001 WLW
February 13, 2018

time reported by Mr. McCabe’s attorneys in this matter was excessive. The Court,
after a careful consideration of the application for attomeys’ fees, and the factors set
forth in Co)c,17 agrees for the following three reasons First, the Court believes that
there was nothing particularly unique or difficult regarding this litigation, especially
considering that the Court reversed the Board’s decision after considering a single
issue that was resolved by simply ordering the Board to properly apply its own rules
Second, although the Court is sure that Mr. McCabe’s attorneys would not inflate the
actual amount of time spent on the appeal before this Court, the Court is also aware
that counsel will often use less experienced attorneys having a reduced hourly rate.
The Court’s finding is, of course, not intended as an affront to Mr. Junge. But, as the
Court has explained time and again, it is inappropriate for attorneys to charge clients
for the lawyer’s own edification on an unfamiliar topic. Third, the Court is troubled
by the fact that the amount requested in fees by Mr. McCabe’s attorneys constitutes
more than three times the amount sought by him before the Board on the issue of his
unpaid medical bills.18 Therefore, as a result of considering these factors, the Court
finds that it is necessary, in accordance with Cox, to reduce the amount of fees

recovered by Mr. McCabe’s attorneys.19

 

17 Id.

18 See McCabe v. Bayside Roofing, Inc., No. 1363751, at 7 (Del. I.A.B. Dec. 15, 2016)
(TRANSCRIPT) (where Mr. McCabe’s attorney claimed to seek only $6,210.90 in unpaid medical
bills).

19 Cox, 304 A.2d 55.

Robert McCabe v. Bayside Roofing. Inc.
C.A. No. Kl7A-02-001 WLW
February 13, 2018

10. Under similar circumstances in Veid, the Court reduced the fees requested
by counsel from S9,825.00 to $4,000.00, approximately two and one-half times less
than the original claimed amount.20 The Court believes this approach is appropriate
in this case as well. Thus, the Court awards Mr. McCabe’s attorneys a total of
$7,735.00.

l 1. Finally, in addition to the $ 19,337.50 sought in attomeys’ fees based on an
hourly rate, Mr. McCabe’s attorneys also seek an additional one-third for the
contingent nature of the litigation. Bayside Roofing argues that the issue on appeal
is not novel or complex, and therefore, the request for the one-third multiplier is not
warranted The Court agrees A one-third contingency multiplier “is not to be
granted routinely, it is justified where the fee was contingent on success, the outcome
was doubtful, and the issues were novel and difficult. Where only the first factor
(contingency of the result) exists, an award of one-third additional is not justified.”21
As previously explained, the issues on appeal were not particularly novel or

complex.22 Therefore, the request for the one-third multiplier is denied.

 

20 See Veid, 2000 WL 33113801 at *3.

21 Thomason v. T emp Control, 2002 WL 1587856, at *1 (Del. Super. Jun. 20, 2002) (quoting
Meaa'ows v. Linton, 2000 WL 33114379, at *1 (Del. Super. Oct. 10, 2000).

22 Contra In the Matter of Ronald Cox, 1984 WL 21201 (Del. Ch. Jun. 7, 1984) (where the
Court of Chancery granted a contingency multiplier in a case involving the representation of a
physically incapacitated claimant against a worker’s compensation carrier before the Board, in an
appeal to this Court, and finally in an appeal to the Delaware Supreme Court, which reinstated the
Board’s holding for the claimant. Unlike the case at hand, the attorneys in Cox were faced with the
task of achieving a permanency benefits settlement between the carrier and the claimant, which was

10

Robert McCabe v. Bayside Roofing. Inc.
C.A. No. Kl7A-02-001 WLW
February 13, 2018

12. In light of the foregoing, Mr. McCabe’s motion for attomey’s fees is
GRANTED IN PART and DENIED IN PART. The amount of $7,735.00 in
attorneys’ fees is awarded.

IT IS SO ORDERED.

/s/ William L. Witham. Jr.
Resident Judge

WLW/dmh

 

interrelated with the work the attorneys had done on a prior worker’s compensation suit for the
claimant. This circumstance made the issues involved more novel and difficult, such that the Court
of Chancery granted the contingent multiplier. Furthermore, the attorneys in the Cox decisions
represented the claimant in an appeal to the Delaware Supreme Court after this Court found for the
carrier. On this basis, the attomeys’ representation of the claimant was deemed to have only a slim
chance of success.).

ll

