Bradley v. GMAC Ins Co , 320 F. App'x 125 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-6-2008
Bradley v. GMAC Ins Co
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3656
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"Bradley v. GMAC Ins Co" (2008). 2008 Decisions. Paper 708.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3656
LONSHYA BRADLEY; DONNA ROSAS, AS GUARDIAN OF
LONSHYA BRADLEY; DONNA ROSAS, IN HER OWN RIGHT,
Appellants
v.
GMAC INSURANCE COMPANY, also known as,
NATIONAL GENERAL INSURANCE COMPANY, also known as,
NATIONAL GENERAL ASSURANCE COMPANY
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D. C. No. 03-cv-05103)
District Judge: Hon. Louis H. Pollak
Submitted under Third Circuit LAR 34.1 (a)
on April 11, 2008
Before: SMITH, HARDIMAN and ROTH, Circuit Judges
(Opinion filed August 6, 2008 )
OPINION
ROTH, Circuit Judge:
Before us is an appeal by Thaddeus Bartowski, counsel for Lonshya Bradley and
Donna Rosas, challenging the grant of attorney’s fees by the District Court. The District
Court awarded attorney’s fees of $17,952.47 on a petition requesting $37,372.75. Bartowski
challenges the District Court’s decision to deny him credit for certain hours he attributed to
this case, the District Court’s chosen percentage enhancement of the lodestar amount, and
the final calculation by the District Court determining his fee. Finding no error, we will
affirm the decision of the District Court.
I. BACKGROUND
Lonshya Bradley was a minor pedestrian who was struck by an automobile. The
driver was insured by GMAC Insurance Co. Bradley had no personal or medical insurance
available and was a recipient of benefits from the Department of Public Assistance (DPA).
As a result of her injuries, DPA incurred medical expenses in excess of $400,000, for which
DPA had a lien against any possible recovery by Bradley.
Bartowski represented Bradley in her lawsuit against GMAC. The lawsuit ultimately
settled for $225,000. DPA agreed to accept one-half of the settlement in satisfaction of its
lien, and to pay attorney’s fees of $37,500 and costs of $381.74.
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Local Rule 41.2(c) in the Eastern District of Pennsylvania requires court approval
before attorney’s fees are paid out of any fund obtained for a minor or incapacitated person.
E.D. Pa. Civil Rule 41.2. Accordingly, when Bartowski requested attorney’s fees be paid out
of the settlement, the District Court required an hourly accounting pursuant to Polselli v.
Nationwide Mut. Fire Ins. Co., 126 F.3d 524, 532 (3d Cir. 1997). Bartowski requested that
the fee reflect 213.5 hours of work compensable at $300 per hour and enhanced by 16.7%
to reflect the risk inherent to a contingent fee case. The District Court excluded 41.9 hours
from consideration and concluded that the applicable billable rate should be $275 per hour
but did grant the requested 16.7% enhancement.
With the District Court’s modifications, the total award of fees and costs that it found
to be appropriate was $55,452.47. The District Court then subtracted the $37,500 fee award
paid by the DPA from this amount to arrive at its final fee award of $17,952.47.
II. DISCUSSION
The District Court had diversity jurisdiction pursuant to 42 U.S.C. § 1332. We have
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review the reasonableness
of an attorney’s fee award for abuse of discretion by the District Court. Polselli, 126 F.3d
at 533 n. 11; accord In re LaRocca's Trust Estate, 246 A.2d 337, 339 (PA. 1968).
A. Fee Calculation
Bartkowski challenges the District Court’s calculation of his fee. He argues that it
erred in excluding certain hours from consideration and in applying a 16.7 percent
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enhancement to the final fee.
The District Court provided ample explanation for its decision not to include the 41.9
hours at issue in calculating an appropriate fee. We find that the District Court did not abuse
its discretion for substantially the same reasons set forth in the District Court’s opinion.
The District Court applied a 16.7 percent enhancement because that was the largest
enhancement that Bartowski asked for and the District Court found that it was justified. On
appeal, Bartowski argues that the 16.7 percent number was chosen because, together with his
proposed total hours and hourly rate, it would result in a fee equal to one third of the
settlement value. Had he known the District Court would reduce the hours and hourly rate
credited to him, he claims he would have asked for a higher percentage enhancement.
However, the fact remains that Bartowski did not ask for more than a 16.7 percent
enhancement. The District Court is not required to guess at the attorney’s reason for
choosing to request a particular enhancement, much less to adjust the enhancement to better
effect that purpose. We find that the District Court did not abuse its discretion in declining
to do so.
B. Fee Division
After determining that the total fees and costs should be $55,452.47, the District Court
determined the amount due to Bartowski from Bradley’s portion of the settlement by
subtracting from that total the $37,500 already paid by the DPA. Bartowski argues that the
District Court instead should have divided the total costs in half, and treated the payment
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from each client separately. On this interpretation Bradley’s portion of his fee would be
$27,726.24.
The local rule applied here places the decision of what fee is appropriate at the
discretion of the District Court. E.D. Pa. Civil Rule 41.2(c). The District Court applied the
standard of Polselli to determine the fee that Bartowski deserved for the entirety of his
efforts. Having done so, there was no requirement that the District Court divide the fee
between the DPA and Bradley. The District Court acted well within its discretion in ruling
in such a way that Bartowski received the overall fee to which it had concluded that he was
entitled. The only contrary authority that has been brought to our attention stands for the
quite separate proposition that successive attorneys are each entitled to their fees quantum
meruit. Mulholland v. Kearns, 822 F. Supp. 1161, 1169-70 (E.D. Pa. 1993).
III. CONCLUSION
For the foregoing reasons, we will affirm the order of the District Court.
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