Palumbo v. U.S. Rubber Co.

• Decision Date: 17 May 1967
• Docket Number: No. 3175,3175
• Citation: 229 A.2d 620,102 R.I. 220
• Parties: Felice A. PALUMBO v. UNITED STATES RUBBER COMPANY. Equity
• Court: Rhode Island Supreme Court

Page 620

229 A.2d 620

102 R.I. 220

Felice A. PALUMBO v. UNITED STATES RUBBER COMPANY.

Equity No. 3175.

Supreme Court of Rhode Island.

May 17, 1967.

Abedon, Michaelson, Stanzler & Biener, Richard A. Skolnik, Providence, for petitioner

Ambrose W. Carroll, Carroll, Kelly & Murphy, Providence, for respondent.

OPINION

JOSLIN, Justice.

This is a petition brought in the name of the employee for the fixing of counsel fees for the successful prosecution of a petition for the payment of medical expenses and for permission to exceed the statutory medical maxima. The case was twice before us. Palumbo v. United States Rubber Co., 97 R.I. 20, 195 A.2d 238; Palumbo v. United States Rubber Co., R.I., 226 A.2d 500. It involved the claims of three physicians who derivatively ¹ in the name of the employee sought to recover their charges of $275.50 for medical services. The litigation terminated with the second decision when we directed that one physician be paid $45.50 which represented a portion of his bill, permitted the stipulated maxima to be exceeded to the extent necessary to make that payment, and denied recovery of the other medical charges because the physicians had failed to comply with the reporting requirements of G.L.1956, § 28-33-8, as amended. The employee's counsel now ask for a fee of $1,225 for the services performed in those proceedings and support the reasonableness of that demand with an itemized sworn statement which discloses that their office spent approximately 35 hours in preparing, briefing and arguing before the commission and in this court.

The employer construes the controlling statute, ² G.L.1956, § 28-35-32, as amended, as contemplating an award of counsel fees only in those instances where an employee has directly benefited from a petition brought in his name. No such benefits accrued here, the employer argues, because the employee's name was borrowed by the physicians and used by them in the prosecution of suits for the payment of their bills for medical services. Even were we to accept arguendo the benefit theory, it would not help the employer's cause. In this case the employee was a direct beneficiary at least to the extent of $45.50, and were it not for this litigation he would have been personally obligated in that amount to his attending physician.

The employer also argues that an award of counsel fees is not permitted unless the employee has been completely successful in the prosecution of his petition. It points to the statute which provides that counsel fees will be charged against an employer for the benefit of an employee if he successfully prosecutes his own petition or if he successfully defends, 'in whole or in part,' a petition for review filed against him. The difference between the two, the employer argues in its brief, supports the theory that the legislature did not intend to allow counsel fees where an employee was only partially successful.

Notwithstanding that contention, the employer, in oral argument and in response to questions from the bench, conceded that fees for an employee's counsel are both appropriate and required where the only recovery on a petition for total compensation is benefits for partial incapacity. It agrees also that a worker who petitions for both weekly benefits and specific compensation, and who is awarded only the former is nonetheless entitled to have his legal fees paid. We see no distinction between such petitions and a petition for medical services. We hold that counsel fees should be awarded in the instances provided for in the statute, notwithstanding the fact that the employee's success is partial rather than total. Our conclusion is consistent with that previously reached in a bench decision. Costa v. Cars, Inc., R.I., 219 A.2d 122.

Having made the initial determinations, we turn now to what the fee shall be. The statute mandates a fee, and it directs that the commission or the court, as the case may be, shall fix an award which shall be 'consistent with the services rendered,' that is to say, which is fair and reasonable. O'Neil v. M & F Worsted Mills, Inc., R.I., 218 A.2d 666; Roy v. Great Atlantic & Pacific Tea Co., R.I., 220 A.2d 512. What is fair and reasonable depends, of course, on the facts and circumstances of each case. Drake Bakeries, Inc. v. Butler, 95 R.I. 143, 185 A.2d 108. We consider the amount in issue, the questions of law involved and whether they are unique or novel, the hours worked and the diligence displayed, the result obtained, and the experience, standing and ability of the attorney who rendered the services. Gorman v. Banigan, 22 R.I. 22, 46 A. 38; Page v. Avila, 55 R.I. 52, 177 A. 541; Higgins v. J. B. Farnum Co., 61 R.I. 262, 200 A. 538, 117 A.L.R. 1003; Lisker v. Monti, 74 R.I. 310, 60 A.2d 485. Each of these factors is important but no one is controlling. Lisker v. Monti, supra.

The difficulty in this case arises from its peculiar factual situation. The employee's counsel emphasize that the litigation was protracted and extensive and refer to the approximately 35 hours consumed in the trial before a single commissioner and in the briefing and the arguing of their contentions first before the full commission and then to this court.

The employee disregards the true nature of these proceedings when he relies on the total time spent as the principal standard for measuring the true value of the services performed by his counsel. Here the derivative claims of the three physicians were merged in a single petition. One was for $160; another for $60; and the third for $55.50. These were in actuality three separate and distinct claims. It was...