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Bustell v. AIG Claims Service11/14/2003
"clear and convincing evidence" that he is entitled to a fee higher than $75 an hour. He has carried his burden. Applying the factors set forth in ARM 24.29.3802(7), he has shown:
(i) The anticipated time and labor required to perform the legal service properly.
This case involved an accident occurring in Indiana, a jurisdictional dispute, and a significant dispute over employment status. Out-of-state depositions were required. As shown by the actual hours Toennis worked, the case required more time and effort than many other workers' compensation cases. Assuming Toennis had six billable hours a day and worked 2080 hours a year, the time spent on this case amounted to nearly one-third of a billable year. That in turn amounts to a significant part of his practice which is even more significant given the risk of no recovery. This factor favors Toennis' request for an increase in the hourly rate.
(ii) The novelty and difficulty of legal issues involved in the matter.
The issues were both novel and difficult. Initially, there was a jurisdictional dispute, a dispute which was complicated by the insurer's initial indication that Montana was the proper jurisdiction for the claim and its later repudiation of that indication and its insistence that Indiana had jurisdiction. There was also a significant dispute over employment status, a dispute complicated by the particular facts and circumstances of this case and the nature of the interstate trucking industry. This factor favors Toennis' request for an increase in the hourly rate.
(iii) The fees customarily charged for similar legal services.
Testimony by the insurers' expert attorney witness established that the usual and customary fee in Billings for workers' compensation litigation is between $125 and $150 an hour. The testifying attorney (Geoffrey R. Keller), like Toennis, has extensive experience and expertise in workers' compensation matters and typically charges $140 an hour. I find that $140 an hour is a reasonable fee for the work Toennis performed. This factor therefore favors Toennis' request for an increase in the hourly rate.
(iv) The possible total recovery if successful.
This case involves a relatively young quadripelegic. The potential total recovery over her lifetime is in the millions of dollars, encompassing not only compensation benefits but significant medical expenses and domiciliary care. Toennis estimates that benefits will be in the range of $6 million over the claimant's life. This factor favors Toennis' request for an increase in the hourly rate.
(v) The time limitations imposed by the client or circumstances of the case.
There were no unusual time limitations imposed in this case.
(vi) The nature and length of the attorney-client relationship.
The facts do not establish a long-term attorney-client relationship or a relationship that is unusual for a workers' compensation case.
(vii) The experience, skill and reputation of the attorney.
The facts, as well as my own experience with Toennis in litigated matters, establish that Toennis is highly skilled in workers' compensation matters. Indeed, his practice is almost exclusively devoted to workers' compensation. This factor therefore favors Toennis' request for an increase in the hourly rate.
(viii) The ability of the client to pay for the legal services rendered.
Toennis' testimony established that claimant was financially unable to pay for his services on an hourly rate and that a contingent fee contract was necessary. Indeed, claimant was confronted not only with the necessity
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