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Chagnon v. Travelers Insurance Co.

Court of Workers Compensation of Montana

December 30, 1993




         This case is before the Court following remand by the Supreme Court. The sole issue presented for determination is the amount of attorney fees and costs. Petitioner's claim for attorney fees and costs was submitted on August 30, 1991. It contained a one page single spaced itemization of costs and a 28 page enumeration of attorney hours. Respondent, Travelers Insurance Company (Travelers), objected to the claim.

         In subsequent exchanges, petitioner's attorney has deleted numerous items from his claim. Nonetheless, the parties are still unable to agree on the amount due petitioner. Travelers has two principal objections to the hours listed by petitioner's attorney. First, it alleges that many of the hours were spent on unrelated matters or matters on which the petitioner did not prevail. Second, it alleges that some of the itemized time was in excess of a reasonable time necessary to perform the particular work.

         In interrogatories propounded on November 8, 1993, the petitioner asked Travelers to specifically identify each time entry it alleges, (1) was not incurred on matters decided by this Court in its Findings of Fact and Conclusions of Law; (2) was not related to an issue on which petitioner prevailed; or (3) was in excess of the amount of time justified by the case. Petitioner also propounded four additional interrogatories which will be discussed later in this Order.

         On November 29, 1993, Travelers served its answers to the interrogatories. Travelers objected to every interrogatory and provided little responsive information.

         On December 7, 1993, petitioner filed a MOTION TO COMPEL OR DISMISS OR FOR SANCTIONS. The motion asks the Court to order Travelers to answer petitioner's interrogatories. In the alternative petitioner asks the Court to dismiss Travelers' objections to the fees and costs requested by petitioner, and thereby award petitioner fees and costs by default. Travelers has filed a brief in opposition to the motion. In that brief and its attachments, it has provided some of the specific information requested by the interrogatories.

         As a general matter, the rules of discovery are "liberally construed to make all relevant facts available to the parties in advance of trial and to reduce the possibilities of surprise and unfair advantage. . . ." Wolfe v. Northern Pacific Ry., 147 Mont. 29, 40, 409 P.2d 528 (1966). Interrogatories must be fully and fairly answered. ARM 24.5.323(4) expressly requires that each interrogatory be answered "fully". The rule permits objections to be made for "good cause," providing in relevant part: "Objections may be made because of annoyance, expense, embarrassment, oppression, irrelevance, or other good cause." Id. Objections must be signed by the answering party's attorney, Id. This latter requirement is important because the attorney's signature constitutes a certification by him or her that the objection is (1) well grounded in fact, (2) warranted by law, and (3) "not interposed for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation." Section 39-71-2914(3), MCA.

         After reviewing the answers to interrogatories and the parties' briefs, the Court concludes that Travelers' objections have no substantial basis and that its answers to most of the interrogatories are unresponsive. The information provided in Travelers' brief demonstrates the insubstantial basis of its original answers and objections.

         The interrogatories propounded by petitioner are aimed squarely at determining Travelers' contentions in this case. Interrogatory 1 asks:

In Defendant's Objection to Reasonableness of Attorney's Fees, page 2, the Defendant stated: "A substantial number of the hours claimed to have been incurred by Claimant's counsel were not incurred before the Workers' Compensation Court and in pursuit of the issues addressed by the Court's Findings of Fact and Conclusions of Law; . . . ."
Please identify by date and entry each and every item contained in Petitioner's Amended Time Records submitted to the Workers' Compensation Court by letter dated March 8, 1993, to which this objection specifically applies.

         The questions in Interrogatories 2 and 3 are identical except Interrogatory No. 2 pertains to Travelers' assertion that "[c]laimant failed to prevail on a number of issues before this Court and thereby is not entitled to attorney's fees pertaining to those issues," and Interrogatory No. 3 pertains to Travelers' assertion that "[t]he hours set out in Claimant's attorney's Affidavit are far in excess of those justified by this case."

         Travelers's answer to the first interrogatory was:

Objection. Respondent objects to this Interrogatory on the grounds that it seeks the mental impressions of counsel for the Respondent contrary to Rule 26(b)(3), M.R.Civ.P. [See also the Montana Supreme Court's most recent decision on opinion work product set out in Palmer v. Farmers Insurance Exchange, Supreme Court Cause No. 91-523, decided October 18, 1992.] Without waiving said objection, Respondent will cite to Petitioner ...

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