Brand v. DEPT. OF LABOR & INDUSTRIES
| Decision Date | 16 December 1999 |
| Docket Number | No. 67319-5.,67319-5. |
| Citation | 989 P.2d 1111,139 Wash.2d 659 |
| Court | Washington Supreme Court |
| Parties | Catherine BRAND, Petitioner, v. DEPARTMENT OF LABOR AND INDUSTRIES OF the STATE OF WASHINGTON, Respondent. |
Bryan P. Harnetiaux, Harbaugh & Bloom, Gary N. Bloom, Delay, Curran, Thompson & Pontarolo, Michael J. Pontarolo, Spokane, Amicus Curiae on Behalf of Washington St. Trial Lawyers Ass'n.
Michael S. Lind, Tacoma, Foster & Associates, Christine A. Foster, Seattle, Charles K. Wiggins, Bainbridge Island, for Petitioner.
Christine Gregoire, Atty. Gen., Martha P. Lantz, Asst. Atty. Gen., Olympia, for Respondent.
Catherine Brand seeks review of a published Court of Appeals decision ordering a reduction and recalculation of the attorney fees awarded to her in a workers' compensation case. Brand argues that an award of attorney fees under RCW 51.52.130 should be calculated without regard to the worker's overall recovery on appeal, and should not exclude fees for work done on unsuccessful claims. We agree, and hold that attorney fees awarded under RCW 51.52.130 should not be limited by the worker's degree of success. However, we agree with the Court of Appeals' conclusion that the trial court failed to make adequate written findings justifying the award of attorney fees in this case. Accordingly, we remand to the trial court to make specific findings regarding the attorney fees award in a manner consistent with this opinion.
Catherine Brand injured her left knee in 1978 while working as an assistant manager at the Sherwood Apartments. The Department of Labor and Industries (Department) found her injury to be work related and, accordingly, granted Brand's workers' compensation claim. Over the course of the next few years, Brand underwent seven knee surgeries and received physical therapy. In 1991, the Department closed Brand's claim on the basis that treatment was no longer necessary and there was no additional permanent partial disability.
Ms. Brand then appealed to the Board of Industrial Insurance Appeals (Board). The Board found that, as of 1992, Brand's knee condition was fixed and stable, and she would not benefit from any further curative treatment. The Board affirmed the Department's award for a permanent partial impairment of 30 percent of the value of the left lower leg. In addition to Brand's knee injury, the Board determined that Ms. Brand suffered from a "Category 1"1 low back strain that was causally related to her knee injury. Clerk's Papers (CP) at 83. Ms. Brand appealed the Board's decision to the Superior Court, claiming to be totally disabled and incapable of gainful employment. In the alternative, Brand asserted that the partial disabilities to her knee and back were more severe than the Board and Department had found. Ms. Brand sought $113,583 in pension benefits and/or additional time-loss compensation.
The jury affirmed the Board's finding that Brand was not totally permanently disabled and did not need further treatment for either her knee or back. Additionally, the jury rejected Brand's argument that she was temporarily disabled between May 1987 and October 1990 and between May 1991 and January 1992. However, the jury disagreed with the Board's assessment of the degree of Brand's injury. The jury increased Ms. Brand's partial disability award for her knee from 30 percent to 40 percent and her low back injury from category one to category two.2 The verdict resulted in a one-time benefit for Ms. Brand in the amount of $3,120.
Ms. Brand's attorneys requested attorney fees under RCW 51.52.130, which provides that the court shall fix a reasonable fees for the services of a worker's attorney if the Board's decision is reversed or modified and additional relief is granted to the worker on appeal. RCW 51.52.130. Tacoma attorney David Vail, Ms. Brand's first attorney who represented Brand before the agency and prepared her case for trial, claimed 42.85 hours at $200 an hour for himself and 17.5 hours at $125 for his associate, for a total of $10,757.50. Christine Foster, Ms. Brand's Seattle attorney who took over the case at trial, requested fees totaling $29,637.3
The trial court awarded Brand $25,000 in attorney fees, together with $1,949.09 in taxable costs for legal services performed on all the issues before the court. The court allocated $6,000 to Brand's first attorney, and $19,000 to her second attorney. The trial court did not enter any written findings or conclusions regarding the attorney fees award, but provided this general explanation:
Verbatim Report of Proceedings (RP) (June 21, 1996) at 17-19.
When asked by the Department whether Ms. Brand could recover attorney fees for all issues, including those on which she failed to prevail, the trial court responded: RP (June 21, 1996) at 19. The Department appealed the award of attorney fees. The Court of Appeals reversed and remanded the case for a recalculation of the attorney fees award. Brand v. Department of Labor & Indus., 91 Wash.App. 280, 959 P.2d 133 (1998). According to the Court of Appeals, the trial court's explanation of the basis for the attorney fees award was inadequate and failed to contain detailed findings about the hourly rate and total hours for each attorney. Id. at 293, 959 P.2d 133. On remand, the Court of Appeals directed the trial court to consider Brand's "very limited success at trial," and to segregate costs and fees attributable to Brand's successful claims from those costs and fees attributable to Brand's unsuccessful claims. Id. at 294, 297, 959 P.2d 133. The court concluded that any award of attorney fees for the unsuccessful claims should be supported by reasons included in the trial court's written findings. Id. at 297, 959 P.2d 133. Brand petitioned for review.
This court reviews the reasonableness of attorney fees awards under an abuse of discretion standard. Progressive Animal Welfare Soc'y v. University of Wash., 114 Wash.2d 677, 688-89, 790 P.2d 604 (1990). "A trial court does not abuse its discretion unless the exercise of its discretion is manifestly unreasonable or based upon untenable grounds or reasons." Id. This court has overturned attorney fees awards when it has disapproved of the basis or method used by the trial court, or when the record fails to state a basis supporting the award. Id. (citing Boeing Co. v. Sierracin Corp., 108 Wash.2d 38, 65, 738 P.2d 665 (1987)).
The trial court in this case awarded $25,000 in attorney fees to Brand under RCW 51.52.130. The relevant portion of RCW 51.52.130 provides:
If, on appeal to the superior or appellate court from the decision and order of the board, said decision and order is reversed or modified and additional relief is granted to a worker or beneficiary ... a reasonable fee for the services of the worker's or beneficiary's attorney shall be fixed by the court.
While RCW 51.52.130 does not distinguish between successful and unsuccessful claims brought on appeal, the statute also does not specify how the amount of attorney fees should be determined. Further, the statute does not address the situation at issue here, where the Board's decision was only partially reversed on appeal.
This court has previously applied the lodestar method when the fee shifting statute at issue fails to indicate how the attorney fees award should be calculated. Bowers v. Transamerica Title Ins. Co., 100 Wash.2d 581, 675 P.2d 193 (1983). A court arrives at the lodestar award by multiplying a reasonable hourly rate by the number of hours reasonably expended on the matter. Scott Fetzer Co. v. Weeks, 122 Wash.2d 141, 149-50, 859 P.2d 1210 (1993). The lodestar amount may be adjusted to account for subjective factors such as the level of skill required by the litigation, the amount of potential recovery, time limitations imposed by the litigation, the attorney's reputation, and the undesirability of the case. Bowers, 100 Wash.2d at 597, 675 P.2d 193. See also Rules of Professional Conduct (RPC) 1.5(a).
The amount of recovery may be a relevant consideration in determining the reasonableness of a fee award, but is not conclusive. Mahler v. Szucs, 135 Wash.2d 398, 433, 957 P.2d 632, 966 P.2d 305 (1998); Travis v. Washington Horse Breeders Ass'n Inc., 111 Wash.2d 396, 409-10, 759 P.2d 418 (1988). "We will not overturn a large attorney fee award in civil litigation merely because the amount at stake in the case is small." Mahler, 135 Wash.2d at 433, 957 P.2d 632. In the context of workers' compensation, this court has approved a $300 award of attorney fees in a case in which the worker recovered only $1,092,...
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