Swift v. Richardson Sports ( 2007 )

* * * * * * * * * * * The Full Commission filed an Opinion and Award in the above-captioned case on October 10, 2003 after the defendant appealed the award of the Deputy Commissioner below. Upon request of the plaintiff, an 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 decision on April 5, 2005. A petition for rehearing was granted to the defendants on July 1, 2005. The Court of Appeals entered its decision on September 6, 2005. The Supreme Court denied plaintiff's petition for discretionary review. The case was remanded back to the Court of Appeals which in turn remanded the case to the Industrial Commission.

Plaintiff's 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 exist 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 and signed by plaintiff on December 2, 2003. The contract provides, from the date the record on appeal was filed at the Court of Appeals, for an attorney's fee of 33 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.

This the 6th day of February 2007.

S/______________________

CHRISTOPHER SCOTT

COMMISSIONER

CONCURRING:

S/______________________ PAMELA T. YOUNG COMMISSIONER

S/______________________ THOMAS JEFFERSON BOLCH COMMISSIONER