January 21, 2016
by Norman Cole

Longshore Quarterly Caselaw Review

norman cole Attorney fees continue to be a hot topic in caselaw.  In Shirrod v. Director, OWCP the 9th Circuit held market rates must be based on rates in the relevant market, which usually is the location where the litigation occurs.  Economic surveys that do not report rates in the relevant market are not helpful.  The Court indicated the Oregon State Bar economic survey probably is a good source with respect to Oregon litigation.

In Modar v. Maritime Services Corporation the 9th Circuit strongly implied fees should be adjusted for delay by applying current rates for past services.  The decision is unpublished and is not precedent, and other decisions indicate a two or three year delay does not require an adjustment, and the method of adjustment is discretionary.

Outside the 9th Circuit employers have tried to avoid paying fees by paying a small amount promptly upon receipt of the claim and then delaying whatever additional compensation is due until receipt of the District Director’s recommendation after an informal conference.  This worked in Bergara v. Suderman Contracting Stevedores, where the employer promptly paid 1% PPD for hearing loss, even though the audiogram indicated entitlement to 20.9%, but then paid the balance after receiving the District Director’s recommendation to pay 20.9%.  The court held the initial payment was tethered to the claim and constituted compensation.

In Baker Botts LLP v. ASARCO LLC the Supreme Court held the Bankruptcy Code did not entitle attorneys to receive fees for the time devoted to defending a fee. “In our legal system,” said the court, “no attorneys, regardless of whether they practice in bankruptcy, are entitled to receive fees for fee-defense litigation absent express statutory authorization.”  Arguably, the LHWCA does not entitle attorneys for fees for services associated with appeals of fees.  I have one claim in which I am asserting that position in the 9th Circuit, but I am not aware of any decisions applying or rejecting Baker Botts in a LHWCA claim.

An unpublished decision from the Board, Cantone v. Electric Boat Corporation, held an employer has no obligation to file a LS-202 if the employer had no notice or knowledge claimant’s disability was work related.  In Cantone, the claimant knew his disability was work related but waited too long to file a claim.  The statue was not tolled because the employer had no obligation to file a LS-202.

An unpublished decision from the Board, Zattiero v. Huntington Ingalls Industries, Inc, held an agreement between claimant and the insurer to pay a specific fee as part of a settlement should be approved, in the absence of collusion, because when adverse parties in arm’s length negotiations agree on an appropriate fee, an element of reasonableness should be inferred from such agreement.

Edwards v. Marine Repair Services, Inc. offers a reminder to parties who contend §33 bars a settlement.  The claimant must give the employer notice of a third party settlement or judgment before compensation is paid.  If nothing has been paid, there is no bar.  Additionally, the claimant must obtain employer’s consent of any settlements, but there is no bar unless the gross settlement is more than the compensation to which the claimant is entitled under the Act.  The employer must offer proof of the amount of compensation to which the claimant is entitled before there can be a bar.

I will be speaking at the Signal Maritime Conference in Seattle, May 23-25, 2016.  My topic, with Tony Filiato of Signal, is “The Search Continues: Recent Legal Decisions that Impact the Practice and Procedure under the Act with an Emphasis on Cases the Explore the Definition of a Longshoreman.”  Please join me and fellow SBH Attorneys at the conference.