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Bustell v. AIG Claims Service11/14/2003
DECISION AND JUDGMENT FOR ATTORNEY FEES
This Court previously determined that claimant's attorney, Mr. Paul E. Toennis (Toennis), is entitled to attorney fees from the respondent/insurer. The matter now before the Court is the amount of attorney fees to be awarded. A hearing regarding attorney fees was held in Billings on May 13, 2003, and the matter is now ready for decision. Findings of fact as pertain to attorney fees are contained in the following discussion and are not separately enumerated.
Decision
Toennis initially seeks fees based on his contingent fee agreement with the claimant. If the Court rejects that as a basis for fees, he then seeks fees on an hourly basis, $225 an hour for his own time and $135 an hour for the time of his associate, In-grid Gustafson (Gustafson). Toennis presented an accounting of his time. That accounting was kept contemporaneously with his work and shows 477.1 hours of work. Gustafson did not keep her time but Toennis estimates she spent 50 hours of her time working on the case.
Respondent urges that Toennis should be limited to $70 an hour. It does not contest 310.6 of hours of his time but disputes the remaining 166.5 hours. It also disputes the fees claimed for Gustafson.
The fee dispute is governed by statute. Section 39-71-614, MCA (1999), fixes the amount of fees that may be awarded against an insurer, providing:
39-71-614. Calculation of attorney fees -- limitation.(1) The amount of an attorney's fee assessed against an insurer under 39-71-611 or 39-71-612 must be based exclusively on the time spent by the attorney in representing the claimant on the issues brought to hearing. The attorney must document the time spent, but the judge is not bound by the documentation submitted.
(2) The judge shall determine a reasonable attorney fee and assess costs. The hourly rate applied to the time spent must be based on the attorney's customary and current hourly rate for legal work performed in this state, subject to a maximum established by the department.
(3) This section does not restrict a claimant and an attorney from entering into a contingency fee arrangement under which the attorney receives a percentage of the amount of compensation payments received by the claimant because of the efforts of the attorney. However, an amount equal to any fee and costs assessed against an insurer under 39-71-611 or 39-71-612 and this section must be deducted from the fee an attorney is entitled to from the claimant under a contingency fee arrangement.
The statute is plain and clear on its face. The Court cannot add to it, ignore portions of it, or modify it. ยง1-2-101, MCA ("In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.").
Initially, the statute precludes any award based on Toennis' contingent fee with the claimant. While he may enter into a contingency fee contract with the claimant, the fees which may be awarded against the insurer must be based on an hourly fee basis. Toennis' request for a contingency fee award is therefore denied.
The statute also requires the attorney to "document the time spent" on the case. By necessary implication, fees cannot be awarded with respect to undocumented time. Since Gustafson did not document her time, the request for fees with respect to her time must be disallowed.
Toennis documented 477.1 hours of work. As set forth in section 39-71-614(1), MCA, I am not bound by that documentation. Although the subsection se
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