Foraker v. Amazon.com, Inc. ( 2021 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
WAYNE FORAKER, )
)
Claimant Below - )
Appellant, )
) C.A. No. N19A-12-001 ALR
v. )
)
AMAZON.COM, INC., )
)
Employer Below - )
Appellee. )
Submitted: December 31, 2020
Decided: January 12, 2021
Upon Application for Attorneys’ Fees
GRANTED
ORDER
Upon consideration of the Application for Attorneys’ Fees and Application
for Supplemental Attorneys’ Fees filed by Wayne Foraker (“Claimant”); the
Response in opposition thereto filed by Amazon.com, Inc., (“Employer”); the
Superior Court Rules of Civil Procedure; the facts, arguments, and legal authorities
set forth by the parties; statutory and decisional law; and the entire record in this
case, the Court hereby finds as follows:
1. Claimant applies for an attorneys’ fee award following a successful
Superior Court appeal from an Industrial Accident Board (“IAB”) decision pursuant
to 19 Del. C. § 2350(f). In that appeal, the Court reversed the IAB’s denial of
additional workers’ compensation benefits and remanded the matter to the IAB for
further proceedings to address a legal error and the absence of substantial evidence
supporting the IAB’s findings of fact regarding Claimant’s injury.1
2. This Court denied Employer’s motion for reargument and/or
clarification by Order dated December 11, 2020 and denied Employer’s application
for certification of an interlocutory appeal by Order dated January 4, 2021.
3. Pursuant to 19 Del. C. § 2350(f), the Superior Court has discretion to
award reasonable attorneys’ fees for an appeal from an IAB decision “where
claimant’s position in the hearing before the [IAB] is affirmed on appeal.”2 “The
legislative intent behind the statute creates a right for a successful claimant to obtain
attorneys[’] fees for the time spent preparing for the appeal from an unfavorable
[IAB] decision.”3
4. In addressing the issue of what constitutes an affirmance of the
claimant’s position before the IAB, the Court explained that “in cases where the
claimant is the appellant, the claimant must have pursued the specific position they
are arguing on appeal at the [IAB] proceeding.”4 The particular action taken by the
Court on appeal, whether it is remanding, reversing, or requesting clarification from
1
Foraker v. Amazon.com, Inc., 2020 WL 6503589 (Del. Super. Nov. 5, 2020).
2
19 Del. C. § 2350(f).
3
Elliott v. State, 2012 WL 7760033, at *1 (Del. Super. Dec. 24, 2012).
4
Murtha v. Cont’l Opticians, Inc., 729 A.2d 312, 317–318 (Del. Super. 1997).
the IAB, is not the determining factor. Rather, it is this Court’s affirming of a
claimant’s position before the IAB that determines whether the Court will grant
attorneys’ fees.5
5. Awards of attorneys’ fees under Section 2350(f) are based on a twofold
inquiry.
6. First, a claimant’s eligibility for attorneys’ fees depends on the Court’s
finding that the claimant’s position before the IAB was affirmed on appeal. Where,
as occurred here, the Court finds in favor of a claimant due to the IAB’s legal error
and reverses the IAB’s decision, “the claimant may seek attorneys’ fees without
waiting until the final outcome of the case.”6
7. Second, if the claimant’s position was affirmed on appeal, then the
Court must determine what fee is reasonable. To determine what fee is reasonable,
the Court considers the factors outlined by the Delaware Supreme Court in General
Motors Corp. v. Cox7 and incorporated into Delaware Lawyers’ Rule of Professional
Conduct 1.5(a):
(1) The time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal service
properly.
5
Elliott, 2012 WL 7760033, at * 2.
6
Id.7
304 A.2d 55 (Del. 1973).
(2) The likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the lawyer.
(3) The fees customarily charged in the locality for similar legal
services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the
client.
(7) The experience, reputation, and ability of the lawyer or lawyers
performing the services.
(8) Whether the fee is fixed or contingent.8
7. The total amount of attorneys’ fees sought in this matter are $8,913.33
for 19.1 hours at an hourly rate of $350.00 per hour.9
8. The hours billed by Claimant’s counsel are commensurate with that
individual’s skill and that the time spent helped to produce a favorable outcome for
Claimant. Court also notes it was necessary for Claimant’s counsel to respond
promptly to a motion for reargument as well as to an application for certification of
interlocutory appeal. Accordingly, the Court is satisfied with the hours worked by
Claimant’s counsel on behalf of Claimant.
8
Id. at 57 (quotation marks omitted); see also Del. Laws.’ R. Pro. Conduct 1.5(a).
9
In his first application, Claimant sought $8,213.33 for 17.6 hours at an hourly rate
of $350.00. In his supplemental application, Claimant seeks an additional $700.00
for 1.5 hours at the same hourly rate expended by Claimant’s counsel opposing
reargument and certification of an interlocutory appeal.
9. The Court also recognizes that the rates charged vary with experience,
ability, and skill.10 The Court is satisfied that Claimant’s counsel has shown that
the rate charged is commensurate with those customarily charged in Delaware
workers’ compensation cases, as well as properly reflective of counsel’s experience,
reputation, and ability.11
10. Although the compensation owed to Claimant has not yet been
determined by the IAB, Claimant’s counsel obtained a favorable result for Claimant.
Analysis of the Cox factors favors Claimant’s application.
10
Claimant’s counsel, Craig T. Eliassen, Esquire, has significant experience with
workers’ compensation cases.
11
See Bank of Am. v. Robinson-McKnight, 2012 WL 3637287, at *9 (Del. Super.
Aug. 23, 2012) (“Awards of attorneys[’] fees pursuant to 19 Del C. § 2350(f) have
ranged in recent cases from $200.00 per hour to $300.00 per hour . . . .” (footnotes
omitted)); see also, e.g., Weddle v. BP Amoco Chem. Co., 2020 WL 5049233, at *3
(Del. Super. Aug. 26, 2020) (granting fees at a rate of $450 per hour for a lawyer
with similar years of experience); Bruce v. Chrysler Grp., 2012 WL 2353538, at *2
(Del. Super. June 13, 2012) (finding a $250 hourly rate reasonable when charged by
an experienced workers’ compensation lawyer who was admitted to the Delaware
Bar for 24 years); Falconi v. Coombs & Coombs, Inc., 2006 WL 3393489, at *3
(Del. Super. Nov. 21, 2006) (finding a $300 hourly rate reasonable when charged by
an experienced workers’ compensation lawyer who was admitted to the Delaware
Bar for 25 years); Zenith Prods. Corp. v. Rodriguez, 2006 WL 1520192, at *1 (Del.
Super. June 5, 2006) (finding $275 per hour was “on the high end of the spectrum”
but nonetheless reasonable in light of counsel’s experience and 17 years as a member
of the Delaware Bar).
NOW, THEREFORE, this 12th day of January 2021, Claimant’s
application and supplemental application for attorneys’ fees are GRANTED.
Claimant is awarded $8,913.33 in attorneys’ fees.
IT IS SO ORDERED.
Andrea L. Rocanelli
________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____
The Honorable Andrea L. Rocanelli