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Langley v. Petro Star Corp. of La.12/29/2000
EN BANC
COOKS, J., DISSENTS.
WOODARD, J., DISSENTS AND ASSIGNS REASONS.
AMY, J., DISSENTS AND ASSIGNS REASONS.
DECUIR AND SULLIVAN, JJ., DISSENT FOR THE REASONS ASSIGNED BY JUDGE AMY.
AFFIRMED.
FACTS
Plaintiff was injured while employed by defendant in 1996. Plaintiff was awarded $265 per week pursuant to a consent judgment rendered on December 4, 1997. The judgment included an award of $4,000 in penalties and $5,000 in attorney's fees. A Motion for Penalties and Attorney's Fees was filed on October 22, 1998, because of defendant's failure to pay timely the amounts due pursuant to the consent judgment. The court awarded plaintiff $3,000 in penalties and $1,500 in attorney's fees.
Plaintiff filed a second Motion for Penalties and Attorney's Fees on February 3, 2000, because defendant began paying the plaintiff monthly rather than weekly. The court awarded plaintiff $3,000 in penalties and $3,000 in attorney's fees. Defendant has appealed only that part of the judgment awarding attorney's fees. Plaintiff has answered the appeal, seeking an increase in the award of attorney's fees for work done in answering this appeal.
DISCUSSION
The sole issue before this court is the interpretation of La.R.S. 23:1201(G), which provides for the award of damages and attorneys' fees for failure to pay an award under the terms of a final judgment. The pertinent provision of the statute is as follows:
G. If any award payable under the terms of a final, non-appealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers' compensation insurance. The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate. (Emphasis added.)
In the present case the hearing officer awarded attorneys' fees in the amount of $3,000.00. The record clearly reflects that the hearing officer based the amount of the fee not only on the time spent by the plaintiff's counsel in preparing the motion and appearing at the hearing, but also took into consideration in setting the fee that this was what she termed "a flagrant violation of the consent judgment."
The question before this court is whether the penalty lies in the imposition or the amount of attorneys' fees assessed. This court has previously held that the amount of attorneys' fees awarded is a type of penalty that should "be measured in relation to the culpability or bad faith exhibited by the offending party." Britton v. City of Natchitoches, 97-1038, p.13 (La.App. 3 Cir. 2/11/98); 707 So.2d 142, 149, writ denied, 98-1203 (La. 6/26/98); 719 So.2d 1057. In a separate opinion, however, this court held "the penalty for arbitrary and capricious behavior lies in the imposition of attorneys' fees rather than the amount of attorneys' fees to be assessed." (Emphasis in original.) Rideaux v. St. Landry Parish School Bd., 97-1616, p.16 (La. App. 3 Cir. 4/8/98); 711 So.2d 819, 827, writ denied 98-1274 (La. 6/26/98); 719 So.2d 1060.
We now hold that the view expressed in Britton is the correct view and the court can take i
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