Hatley v. Continental General Tire ( 2010 )

*********** Defendants appealed this matter from an Opinion and Award entered on August 4, 2008 and amended on August 18, 2008, by Deputy Commissioner Robert Wayne Rideout, Jr. The Full Commission filed an Opinion and Award on March 20, 2009 awarding benefits to plaintiff. Defendants appealed to the North Carolina Court of Appeals. In Case Number COA09-971 filed April 6, 2010, the Court of Appeals affirmed the Opinion and Award of the Industrial Commission. Defendants did not appeal the decision of the Court of Appeals.

Attorney's Fees

Plaintiff has filed a motion for attorney's fees and costs pursuant to N.C. Gen. Stat. § 97-88. Plaintiffs attorney submitted an itemization of 65.2 billable hours, with an hourly rate of $211.14, for a total of $13,766.33. Defendants filed a response in opposition to said motion. Pursuant to N.C. Gen. Stat. § 97-88, the Commission has discretion to award reasonable attorney's fees for appeals brought by insurers when the Commission orders the insurer to make or continue payments of compensation to the injured employee.

In the Opinion and Award filed March 20, 2009, the Commission approved an attorney's fee for plaintiffs counsel in the amount of one-fourth of the accrued and ongoing compensation awarded plaintiff.

In the Commission's discretion, plaintiff's counsel is allowed reasonable attorney's fees for defendants' appeal of this matter and plaintiffs motion for attorney's fees is hereby GRANTED. In light of the attorney's fees previously awarded, as well as the circumstances of this case, the nature and extent of services provided, the Commission in its discretion finds that a reasonable additional attorney's fee is $13,766.33.

Therefore, pursuant to N.C. Gen. Stat. § 97-88, defendant shall pay counsel for plaintiff a reasonable attorney's fee of $13,766.33.

10% Penalty

Plaintiff filed a motion for imposition of a 10% late penalty pursuant to N.C. Gen. Stat. § 97-18(e) and (g). Defendants filed a response in opposition to the motion. In addition, the parties submitted supplemental responses concerning the applicability of the Court of Appeals' decision in Morales-Rodriguez v. CarolinaQualityExteriors, ___ N.C. App., ___, ___ S.E.2d ___ (COA07-1389, filed July 20, 2010).

Because of the contradictory opinions inMorates-Rodrigues and Roberts v. Dixie News, 189 N.C. App. 495,658 S.E.2d 684 (2008), the Full Commission declines at this time to grant plaintiffs motion for 10% late penalty. This ruling does not preclude plaintiff from re-filing his motion for 10% late penalty at such time as the Court of Appeals clarifies its opinions as to whether a timely appeal to the Full Commission stays the Opinion and Award of a Deputy Commissioner.

This 15 day of September, 2010.

___________________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

CONCURRING:

___________________________ PAMELA T. YOUNG CHAIR

___________________________ BERNADINE S. BALLANCE COMMISSIONER