Swift v. Richardson Sports Ltd Partners
| Decision Date | 15 January 2008 |
| Docket Number | No. COA07-685.,COA07-685. |
| Citation | 658 S.E.2d 674 |
| Court | North Carolina Court of Appeals |
| Parties | Michael SWIFT, Employee, Plaintiff v. RICHARDSON SPORTS LTD. PARTNERS, d/b/a Carolina Panthers, Employer, and Legion Insurance Company, c/o Cameron M. Harris & Company, Carrier, Defendants. |
R. James Lore, Cary, for Plaintiff-Appellee.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Hatcher B. Kincheloe and Shannon P. Metcalf, Charlotte, for Defendant-Appellants.
Richardson Sports d/b/a Carolina Panthers (Defendant) appeals from an Order of the North Carolina Industrial Commission granting a motion by Michael Swift (Plaintiff) for attorney's fees. We reverse and remand for additional findings.
The factual and procedural history of this case is summarized as follows: Plaintiff, who was previously employed by Defendant as a professional football player, suffered a compensable injury in December 1999. At the time of Plaintiff's injury, Defendant's workers' compensation insurance was provided by Legion Insurance Company (Legion). Plaintiff applied for workers' compensation benefits and a hearing was conducted before a Deputy Commissioner in November 2002. On 10 March 2003 the Commissioner entered an Opinion that awarded disability and medical benefits to Plaintiff, and attorney's fees to Plaintiff's counsel. Defendant and Legion appealed to the Full Commission. On 10 October 2003 the Commission issued an Opinion and Award adopting the Opinion of the Deputy Commissioner with modifications, and left the Commissioner's award of attorney's fees undisturbed. On 30 October 2003 the Commission filed an amendment to its Opinion, for reasons unrelated to the issue of attorney's fees.
Defendant and Legion appealed both the original and amended Opinions of the Commission. This Court issued an opinion on 5 April 2005. Following a rehearing, it issued a superceding opinion on 6 September 2005, affirming in part and reversing in part. Swift v. Richardson Sports, Ltd., 173 N.C.App. 134, 620 S.E.2d 533 (2005) (Swift I), disc. review denied, 360 N.C. 545, 635 S.E.2d 61 (2006). In Swift I, this Court overruled Defendant's arguments challenging the Commission's "finding that plaintiff sustained a compensable injury by accident arising out of and in the course of his employment[,]" Id. at 138, 620 S.E.2d at 536, its admission of certain evidence, and the Commission's award of 299 weeks of workers' compensation benefits. The Court reversed the Commission's ruling on the issue of Defendants' entitlement to credit for amounts paid after Plaintiff's injury, and "remanded to the Commission for the entry of an appropriate award which allows for a dollar-for-dollar credit." Id. at 143, 620 S.E.2d at 539.
Regarding attorney's fees, this Court noted that the Commission awarded attorney's fees pursuant to N.C. Gen.Stat. § 97-88.1, which requires that before awarding attorney's fees, "the Commission must determine that a hearing `has been brought, prosecuted, or defended without reasonable ground.'" Id. (quoting N.C. Gen.Stat. § 97-88.1). The Court held that the "opinion and award sheds no light whatsoever upon this question[,]" and remanded "this issue to the Full Commission for the entry of additional findings of fact and conclusions of law on the issue of attorney fees[.]" Id. The opinion directed that the Commission should "state the statute it relied upon in making the award and should make the necessary findings of fact and conclusions of law supporting the award." Id.
In sum, this Court upheld the Commission's award of 299 weeks of workers' compensation benefits, and rejected Defendants' arguments regarding compensability, admission of certain evidence, and the number of weeks' compensation. The Court reversed the Commission's calculation of the credit to which Defendants were entitled and its award of attorney's fees.
At the same time an arbitration proceeding was occurring under the NFL Collection Bargaining Agreement. Pursuant to this arbitration and the settlement thereof, on 14 August 2006 the Tennessee Insurance Guaranty Association (TIGA) paid Plaintiff and his counsel $207,194.34. On 23 August 2006 Plaintiff filed a motion for attorney's fees and for approval of Plaintiff's attorney's fees contract, pursuant to N.C. Gen.Stat. §§ 97-88 and 97-90 (2005). On 6 February 2007 the Commission approved Plaintiff's attorney's fees contract and awarded Plaintiff's counsel attorney's fees of $69,064.78, pursuant to N.C. Gen.Stat. § 97-88. Defendant has appealed from this order.
On appeal from the Industrial Commission:
Our review of the Commission's opinion and award is limited to determining whether competent evidence of record supports the findings of fact and whether the findings of fact, in turn, support the conclusions of law. If there is any competent evidence supporting the Commission's findings of fact, those findings will not be disturbed on appeal despite evidence to the contrary. However, "[t]he Commission's conclusions of law are reviewed de novo."
Rose v. City of Rocky Mount, 180 N.C.App. 392, 395, 637 S.E.2d 251, 254 (2006) (quoting Ward v. Long Beach Vol. Rescue Squad, 151 N.C.App. 717, 720, 568 S.E.2d 626, 628 (2002)), disc. review denied, 361 N.C. 356, 644 S.E.2d 232 (2007) (citations omitted).
Preliminarily, we address Plaintiff's argument that an employer's liability under N.C. Gen.Stat. § 97-88 is an issue that Defendant waived by failing to raise it on its previous appeal to this Court. In the Commission's October 2003 Opinion, from which Defendant originally appealed, the Commission awarded attorney's fees pursuant to N.C. Gen.Stat. § 97-88.1 (2005). Accordingly, the applicability of N.C. Gen.Stat. § 97-88 to the facts of this case was not pertinent to the appeal, and Defendant did not waive review by failing to raise it on its first appeal.
The Commission's Opinion awards attorney's fees under N.C.Gen.Stat. § 97-88, which provides in pertinent part that:
If the Industrial Commission at a hearing on review or any court before which any proceedings are brought on appeal under this Article, shall find that such hearing or proceedings were brought by the insurer and the Commission or court by its decision orders the insurer to make, or to continue payments of benefits, including compensation for medical expenses, to the injured employee, the Commission or court may further order that the cost to the injured employee of such hearing or proceedings including therein reasonable attorney's fee to be determined by the Commission shall be paid by the insurer as a part of the bill of costs.
"This Court reviews the Commission's ruling on a motion for attorney's fees for an abuse of discretion." Cox v. City of Winston-Salem, 171 N.C.App. 112, 119, 613 S.E.2d 746, 750 (2005) (citing Taylor v. J.P. Stevens Co., 307 N.C. 392, 394, 298 S.E.2d 681, 683 (1983)). However, although the Commission acts in its discretion in deciding whether to award attorney's fees under N.C. Gen.Stat. § 97-88, its Opinion must contain sufficient findings of fact for this Court to resolve appellate issues. Hodges v. Equity Grp., 164 N.C.App. 339, 347, 596 S.E.2d 31, 37 (2004) ()"
In the instant case, the Commission's Opinion stated, in relevant part, the following:
The Full Commission filed an Opinion and Award in the above captioned case . . . after the defendant appealed the award of the Deputy Commissioner below. . . . [A]n amended Opinion and Award was entered for the Full Commission on October 30 2003. The case was appealed by the defense to the North Carolina Court of Appeals which issued its [first] decision on April 5, 2005[,] . . . [and a superceding] decision on September 6, 2005. . . . The case was remanded back to the Court of Appeals which in turn remanded the case to the Industrial Commission.
Plaintiff[] filed a motion for attorney's fees and costs pursuant to N.C. Gen.Stat. § 97-88. Plaintiff's attorney submitted itemization of 187.5 total hours spent on appellate issues in this case. Considering the fact that the defense appealed and lost on both the issue of compensability, degree of disability and entitlement to medical compensation, further considering the risk of defense of such an appeal and the substantial time spent in defending the risk along with the skill and expertise of the plaintiff's counsel good cause exists for taxing the defense with plaintiff's attorney's fees otherwise due to be paid by the plaintiff.
In the Commission's discretion, plaintiff's counsel is allowed reasonable attorney's fees for defendants' appeal of this matter and plaintiff's motion for attorney's fees is hereby GRANTED. In light of the circumstances of this case, as well as the nature and extent of services provided, the Commission in its discretion finds that a reasonable attorney's fee to be taxed is $69,064.78. Therefore, pursuant to N.C. Gen.Stat. § 97-88, defendants shall pay plaintiff a reasonable attorney's fee of $69,064.78 as part of the costs of the appeal.
Plaintiff also has moved for Commission approval of a fee contract entered into by the parties[, that] . . . provides, from the date the record was filed at the Court of Appeals, for an attorney's fee of 3 1/3 of compensation awarded. This fee contract is reasonable under these circumstances and is hereby APPROVED and an attorney's fee of 33 1/3% of the benefits payable to plaintiff is awarded to plaintiff's counsel.
The Commission's Opinion adequately finds certain essential facts. It states its statutory basis (§ 97-88);...
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