Submitted: June 14, 2005
AWARD OF COSTS
Following a successful appeal of a decision finding the
petitioner's claim time-barred, and the respondent's
acquiescence to the Court's announced intention to rule
in favor of the petitioner with respect to her request for
temporary total disability benefits, the petitioner submitted
a Memorandum of Costs to which the respondent has objected.
The respondent's objection to inclusion of the cost of
appellate mediation is sustained; its other objections are
Costs: WCC Costs. Under Rule 24.5.342(2) of
the Workers' Compensation Court rules, the signature of
an attorney constitutes his or her certification of the
costs. Statutes requiring verification of costs in civil
actions are inapplicable.
Costs: WCC Costs. The cost of appellate
mediation is not a recoverable cost.
The matter before the Court is the petitioner's request
for costs of $3, 653.44. The respondent objects on numerous
Initially, citing sections 25-10-501 and -503, MCA (2003),
the respondent urges that costs should be denied because the
petitioner's counsel did not verify his Memorandum of
Costs. Section 25-10-501, MCA (2003), provides that a bill of
costs must be verified. Section 25-10-503, MCA (2003),
provides that if an appellate court awards costs, then the
bill of costs to be awarded must be verified in accordance
with section 25-10-501, MCA (2003).
The cited sections are inapplicable. The Supreme Court did
not award costs on appeal. Rather, it reversed this
Court's decision finding in favor of the respondent.
Costs are to be awarded by this Court on account of the
petitioner prevailing. Section 25-10-501, MCA (2003), as does
the entire Title 25, pertains to civil actions, thus it is
not applicable where the rules of the Workers'
Compensation Court provide a different procedure. Here, Rule
24.5.342(2), ARM, provides:
(2) The application for taxation of costs must be signed by
the attorney for the claimant, or the claimant personally, if
appearing pro sé. The signature on the application is
a certification by the person signing the application of the
accuracy of the costs claimed and that the costs incurred
were reasonable and necessary to the case.
The rule does not require verification. Rather, it provides
that an attorney's signature on a memorandum of costs is
The respondent further objects based on the requirement, also
found in section 25-10-503, MCA (2003), that a party must
file his or her memorandum of costs within thirty days of
remittitur. That requirement applies, however, only where the
appellate court awards the fees, which is not the case here.
Here, the Workers' Compensation Court is awarding the
fees based upon the further proceedings ordered by the
Supreme Court. This Court indicated that it was prepared to
rule in the petitioner's favor on the merits of her claim
for reopening, awarding her temporary total disability
benefits retroactive to 1999 and through the date of the
hearing, leaving open the issue of whether the benefits
ceased at the time of alleged noncooperation by the
petitioner. (January 10, 2005 Minute Entry.) The respondent
acquiesced to the Court's statement of intent and paid
retroactive benefits through December 2, 2003. (March 24,
2005 Minute Entry.)
Next, the respondent objects to $1, 536.72 paid by the
petitioner as her share of the mediator's fee for
appellate mediation. The objection is sustained. Rule
54(d)(5), Mont. R. App. P., provides that "[t]he
mediator's fee and incidental expenses shall be shared
equally by the parties." Rule 24.5.342, ARM, does not
override that rule and ...