Perez v. Travelers Insurance

Burgess, J.,

¶ 19. concurring in part and dissenting in part. I agree that the issue of attorney’s fees should be remanded, but only for a partial award at the undisputed statutory rate. While the trial court was correct in its assessment that some of the fees sought were inadequately supported, other times and activities described in the *55“Time Entry Report” submitted in support of claimant’s Motion for Attorney’s Fees appear reasonable on their face. For example, it is undisputed that this case involved a two day trial preceded by part of a day in jury draw, plus travel. The aggregate twenty-six hours reported as spent in those endeavors seem reasonable and are not contested.

¶ 20. Other entries, however, were not so apparently necessary. The trial court specifically found that it could not determine, from the utter lack of information provided, the relevance to case preparation of some of the time and work reported. Among other unsubstantiated items noted by the court were frequent entries for “file review” not reported in connection with any particular proceeding, pleading, or purpose, and a number of phone calls from the client, all amounting to over eight hours, without any indication whatsoever as to why these activities were necessary.

¶ 21. The majority reasons that the claimant’s entitlement to “reasonable attorney’s fees” is at odds with the trial court’s proposition that counsel seeking an award of fees should keep detailed and precise billing records. The majority finds this standard, borrowed from bankruptcy law, overly demanding for workers’ compensation claims, but does not overcome the trial court’s plain logic that, just because an activity occurred and is recorded does not “automatically” make it, as a matter of a prima facie showing, necessary to the litigation. Even if the bankruptcy standard is too stringent, it was still no abuse of discretion for the trial court to reject the wholly unexplained entries as not supported by any evidence. See Hodgeman v. Jard Co., 157 Vt. 461, 466, 599 A.2d 1371, 1374 (1991) (“The determination of ‘reasonable attorney fees’ lies within the commissioner’s discretion, but counsel has the burden of providing evidence to justify an award.”).

¶ 22. It was not an abuse of discretion for the trial court to reject claimant’s proffered hourly rate of $175.00. In her Motion for Attorney’s Fees, claimant asserted that workers’ compensation litigation is a “niche” practice, and that few attorneys take cases, like the instant one, to trial before the superior court on appeal de novo. Claimant conceded, in her Motion for Reconsideration, that she could have obtained affidavits about comparable hourly rates from other workers’ compensation practitioners. Instead, claimant submitted affidavits of two attorneys, prepared for an entirely different case, who described their respective practices as personal injury, wrongful *56death, commercial litigation and white collar defense at an hourly rate of $250.00 for one; and civil, family, personal injury and criminal defense at an hourly rate of $175.00 for the other. Except that both affiants and claimant’s counsel practiced “litigation” for approximately the same number of years, neither the motion nor the affidavits recite any substantial similarity between counsel’s niche practice and the areas of litigation described in the affidavits.

¶ 23. “Litigation” is not a particularly clarifying descriptor. Any court proceeding involving contested evidence and legal rulings is litigation, but does not necessarily warrant an hourly rate of $175.00. The similarity claimed here was so broad as to be uninformative. Counsel and the attesting attorneys might as well have simply declared that they all practiced law in court. Nothing in the motion or in the affidavits indicated the comparative demands and complexities of this case and counsel’s practice to the practices of the attesting attorneys.

¶ 24. We know there are dissimilarities. For example, litigation over personal injury, wrongful death and criminal culpability typically involves legal and factual issues of fault, while the right to workers’ compensation is a matter of strict employer liability. Personal injury litigation can involve products-liability disputes over design, engineering, and manufacturing, while workers’ compensation does not. Other civil and commercial litigation generally addresses disputes concerning interpretation and enforcement of deeds, contracts, leases, and debt, while workers’ compensation law does not. Family court litigation focuses on dissolution and redistribution of families and their estates, all of which is foreign to workers’ compensation practice. The litigation in the instant case could have been more or equally difficult than what is summarily categorized by the attorneys, but there is no reason to presume so based on the motion and the affidavits.

¶ 25. The majority is correct that claimant was entitled to attorney’s fees, but the right does not make the proof. There is no fixed formula to determine the reasonableness of attorney’s fees, but “several factors must be considered,” including “the nature and importance of the business,... the usual prices charged by other attorneys for similar services in the same vicinity[,]... the importance of the matter, and the responsibility assumed and carried.” Fine Foods, Inc. v Dahlin, 147 Vt. 599, 605, 523 A.2d 1228, 1232 (1986) (emphasis added). Nothing in the motion, or in the affidavits, touches on those topics. Absent evidence on those factors, it would *57have been error for the court to adopt an hourly rate of $175.00 as part of the lodestar figure advised by the majority. Id. (rejecting an award of attorney’s fees when plaintiff failed to introduce evidence of reasonableness, and observing that “[ejvidence of this sort was not available to the court in the instant case because none was admitted”). Claimant failed to submit the evidence necessary to prove her point.5

¶ 26. I respectfully dissent from that portion of the remand requiring the court to set a reasonable hourly rate above the $90.00 statutory rate, and from the holding that compensable attorney’s fees include time spent on activities merely relating, but not claimed or recorded in a manner reflecting reasonable necessity, to the litigation at issue. I concur in remanding for a calculation of attorney’s fees, but at the conceded statutory hourly rate of $90.00 for those entries that can be determined as reasonably necessary to the litigation at issue.

The majority explains that $175.00 per hour is not necessarily the reasonable rate to be employed by the trial court in awarding attorney’s fees, and expects the court to divine a rate between the agreed-upon floor of $90.00 and the unsubstantiated ceiling of $175.00. There was no other evidence presented, however, of prevailing rates for the court to consider, and no suggestion that the trial judge was independently familiar with lawyers’ rates prevailing in these kinds of cases. On the same lack of evidence, this Court could decree an hourly rate just as inaccurately as the trial court, without the trouble of remand.