Couture v. Mammoth Groceries, Inc.

• Decision Date: 31 March 1977
• Docket Number: No. 7659,7659
• Citation: 117 N.H. 294,371 A.2d 1184
• Parties: Patricia COUTURE v. MAMMOTH GROCERIES, INC., et al.
• Court: New Hampshire Supreme Court

Page 1184

371 A.2d 1184

117 N.H. 294

Patricia COUTURE v. MAMMOTH GROCERIES, INC., et al.

No. 7659.

Supreme Court of New Hampshire.

March 31, 1977.

James A. Connor, Manchester, by brief and orally, for plaintiff.

Devine, Millimet, Stahl & Branch, Manchester (Shane Devine, Manchester, orally), for defendant Mammoth Groceries, Inc.

DOUGLAS, Justice.

This case determines whether an award of counsel fees pursuant to RSA 281:37-a (Supp.1975) was 'reasonable' as to amount. We hold that it was. This appeal arises from a motion by plaintiff seeking counsel fees, pursuant to RSA 281:37-a (Supp.1975), that were incurred in a workmen's compensation claim in which plaintiff prevailed in both the superior court and upon a subsequent appeal to this court. See Couture v. Mammoth Groceries, Inc., 116 N.H. 181, 355 A.2d 421 (1976).

Following a hearing, the superior court awarded plaintiff counsel fees of one-third of any 'benefits received to date as well as for any future benefits.' Defendant seasonably excepted and the Trial Court (Flynn, J.) reserved and transferred the question of whether the award was 'reasonable.'

While the prevailing litigant is ordinarily not entitled to collect reasonable attorney's fees from the loser (Doleac, Court Awarded Attorneys Fees Under New Hampshire Common Law, 17 N.H.B.J. 134 (1976)), many recent legislative enactments have provided for such awards. The legislative authorizations for the granting of attorney's fees usually are based upon an intent to permit private parties to enforce a law as 'private attorneys general' and the realization that in many non-class action cases the verdict or damages often may be offset or even exceeded by the successful plaintiff's attorney fees. The private attorney general rationale was also enunciated in a recent First Circuit case wherein fees were imposed on the government. The court noted that the purpose is 'to allocate the costs of litigation equitably, to encourage the achievement of statutory goals.' Natural Resources Defense Council v. EPA, 484 F.2d 1331, 1338 (1st Cir. 1973). See also Bradbury v. Shaw, 116 N.H. 388, 391, 360 A.2d 123, 126 (1976).

The statutory grant of attorney's fees under New Hampshire's workmen's compensation law is defined in RSA 281:37-a, (Supp.1975), which reads in part: 'In any dispute over the amount of benefits payable under this chapter which is appealed to the superior or supreme courts, the employee, if he prevails, shall be entitled to reasonable counsel fees as approved by the court . . ..' Defendant asserts that a fee of one-third is in excess of a reasonable fee as outlined in the statute, that it is error to base a fee award upon future installments, Pennell v. United Insurance Co., 150 Tex. 541, 243 S.W.2d 572 (1951), and that a contingent fee can only be considered as evidence of the employment of counsel. Wolf v. Mutual Benfit Health and Accident Association, 188 Kan. 694, 366 P.2d 219 (1961).

In this state contingent fees are not per se unreasonable for 'the mere fact that an attorney's fees are to be contingent upon his success and are to constitute a share of the proceeds recovered can scarcely be said to offend the public conscience.' Markarian v. Bartis, 89 N.H. 370, 374, 199 A. 573, 576 (1938). While contingent fees in criminal cases are against 'public policy,' in civil cases 'they have long been commonly accepted in the United States in proceedings to enforce claims.' ABA, Code of Professional Responsibility, Ethical Consideration 2-20 (1976). See also F. MacKinnon, Contingent Fees for Legal Services (American Bar Foundation, 1964). This is not...