JUDGMENT AWARDING ATTORNEY FEES
Supreme Court directed Workers' Compensation Court to
award attorney fees and costs to claimant. On remand, amount
of fees is at issue.
Documented costs awarded. Attorneys fees awarded regarding
benefits attorneys work obtained for claimant. Attorneys fees
denied with respect to claimant's successful pursuit of
attorneys fees through appeal. Supreme Court decision governs
scope of fees and does not authorize order of attorneys fees
on attorneys fees. Moreover, authority for attorneys fees is
statutory (section 39-71-612, MCA (1979)), with statutory
language not authorizing attorneys fees on attorneys fees.
Constitutions, Statutes, Regulations and Rules:
section 39-71-612, MCA (1979). On remand following
Supreme Court decision ordering award of attorneys fees,
Workers' Compensation Court refused to order attorneys
fees on successful appeal to obtain attorneys fees where
statute does not authorize such fees.
Attorney Fees: Cases Denied. On remand
following Supreme Court decision ordering award of attorneys
fees, Workers' Compensation Court refused to order
attorneys fees on successful appeal to obtain attorneys fees
where section 39-71-612, MCA (1979) does not authorize such
fees and Supreme Court opinion did not address such fees.
case is on remand from the Supreme Court, which directed an
award of attorney fees and costs to claimant, Gerald Madill
(Madill). The decision of the Supreme Court governs the
. . . Madill is entitled to an attorney fee based on the
difference between 300 weeks of benefits at his partial
disability benefit rate, and the total disability benefits to
which Madill has been entitled since May 31, 1988, and to
which he will be entitled during the remainder of his life
expectancy. The presumption is that a reasonable basis for
the attorney fee award is Madill's fee agreement with his
attorney. See Wight v. Hughes Livestock Co., Inc.
(1983), 204 Mont. 98, 664 P.2d 303. That agreement provides
for a fee equal to twenty percent of those amounts recovered
due to the attorney's efforts. That portion of the fee
related to those amounts which have already been paid is due
in a lump sum. Any fee related to periodic benefits which are
owed to Madill in the future should be paid periodically.
Madill v. State Fund, 930 P.2d 665, 673, 54 St. Rep.
to the remand, Madill, through his attorney, filed various
statements and memoranda setting out his claim for attorney
fees and costs. The amounts claimed are as follows:
(1) Attorney fees on benefits already paid
(2) Costs set out in original statement
(3) Costs on appeal
(4) Costs set forth in a supplementary
Application for Taxation ofCosts, dated March
7, 1997 (This application includes the costs of
appeal set forth separately in item (3))
(5) Attorney's fees with respect to the
award of attorney fees and costs
has three objections to the amount claimed. First, it objects
to $87.50 in undocumented costs. Second, it objects to the
double counting of the costs on appeal. Third, it objects to
any award of attorney fees upon attorney fees. Its objections
are meritorious and are
sustained. It also objects to claimant's
request for interest.
first and second objections require little discussion. The
$87.50 is indeed undocumented and claimant can recover his
costs only once. Therefore, the amounts requested by claimant
must be reduced by $438.25 ($87.50 plus $350.75.)
claimant's request for an award of attorney fees with
respect to his successful pursuit of attorney fees, he cites
no authority for such award other than general language
concerning the net award concept. His request is
denied for two reasons. First, the Supreme
Court decision in this case governs the scope of any award
made upon remand and that decision does not authorize the
award of attorney fees on attorney fees. Second, the statute
governing an award of attorney fees expressly states that
claimant is entitled to attorney fees based on the
"difference between the amount settled for or
awarded and the amount tendered or paid . . . ." §
39-71-612, MCA (1979); Madill v. State Compensation Ins.
Fund, No. 96-117, slip op. at 13 (Mont. January 2,
1997). The language is plain on its face, permitting an ...