ORDER AWARDING COSTS
Following successful petition to the Workers'
Compensation Court, claimant sought costs including air
travel for claimant and his attorney, as well as expert
witness fees beyond the statutory $10 rate for all witnesses.
Costs denied (but see subsequent WCC decisions following
adoption of WCC Rule on Costs, ARM 24.5.342 (which include
expert witness fees).
Costs: WCC Costs. Costs of air travel for claimant and
counsel, and expert witness fees beyond statutory rate for
all witnesses, denied as recoverable costs in Workers'
Compensation Court (but see subsequent WCC decisions
following adoption of WCC Rule on Costs, ARM 24.5.342 (which
include expert witness fees).
November 23, 1994, this Court issued its Findings of Fact,
Conclusions of Law and Judgment, finding in favor of the
claimant and awarding costs. On December 12, 1994,
Appellant's Verified Bill of Costs was filed in which he
sought costs totalling $1, 826.50. State Compensation
Insurance Fund (State Fund) objects to petitioner's
request for costs for air travel for the claimant and his
attorney in the amount of $313.50 and for expert fees in the
amount of $450. State Fund argues that expert fees are the
same as any witness and are limited to $10 per day.
issue of expert witness fees was addressed by this Court in
Kloepfer v. Lumbermens Mutual Casualty Co., in its
Order Denying Petitioner's Request for Redetermination of
Costs issued June 22, 1994. The Court denied expert witness
fees in excess of $10, stating:
Petitioner further argues that Witty v. Pluid, 220
Mont. 272, 273, 714 P.2d 169 (1986), in which the Supreme
Court held that expert witness fees are limited to $10 per
day per witness, concerned costs in a district court
proceeding and is therefore inapplicable to the Workers'
Compensation Court. However, in Baeta v. Don Tripp
Trucking, 254 Mont. 487, 839 P.2d 566, (1992), the
Supreme Court held that the same cost statute governing
district court proceedings (§ 25-10-201, MCA) is
applicable to proceedings in the Workers' Compensation
Court. In Witty the Court specifically considered the fees
which may be awarded to experts under section 25-10-201. It
determined that the section does not permit a fee greater
than $10 because section 26-2-505, MCA, provides that
"[a]n expert is a witness and receives the same
compensation as a witness" and section 26-2-501, MCA,
provides that a witness is entitled to $10 for each day of
attendance at trial.
Thayer v. Hicks, 243 Mont. 138, 158, 793 P.2d 784
(1990), the Supreme Court discussed litigation costs,
Not all litigation expenses that may properly be billed to a
client may necessarily be recovered from the opposing party.
Only those costs delineated in sec. 25-10-201, MCA, may be
charged to the opposing party unless the item of expense is
taken out of sec. 25-10-201, MCA, by a more specialized
statute, by stipulation of the parties or by rule of court.
Luppold v. Lewis, 172 Mont. 280, 292, 563 P.2d 538,
545 (1977). . . .
The prevailing party has the burden of proving that each
disbursement that does not fall within the statutory list is
within the purview of the statute.
noted, section 25-10-201, MCA, is applicable to the
Workers' Compensation Court. Neither party argues that
the disputed costs are governed by a special statute. There
is no stipulation of the parties and there is not a Court
rule regarding airfares. The petitioner presents no
information or proof that the airfares is "within the
purview of the statute." The Supreme Court in
Thayer, supra, denied airfare expense for an expert
witness, citing Powers Manufacturing Co. v. Leon Jacob
Ent. 216 Mont. 407, 412, in which the Court held,
"Air fares are not contained in section 25-10-201, MCA,
the allowable cost provisions. We hold that air fares are not
properly allowable as costs."
request for airfares in the amount of $313.50 is
denied. Expert witness fees are limited to
$10 for Psychological Associates and $10 for Neuropsychology
HEREBY ORDERED that petitioner shall recover from the