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holding that recovery of attorneys' fees which were otherwise "reasonable" was not objectionable in third-party indemnity action simply because the requested fees included amounts both for defending against the underlying suit and simultaneously prosecuting the indemnity action, and observing that motions to "mold the verdict" were not a part of Delaware jurisprudence
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C.A. No. 00C-05-252 RRC
Submitted: July 3, 2002
Decided: September 17, 2002
UPON AMQUIP CORPORATION'S PETITION TO "MOLD THE VERDICT." JUDGMENT ENTERED.
ORDER
This 17th day of September, 2002, upon consideration of AmQuip Corporation's "Petition to Mold the Verdict," it appears to this Court that:
1. Defendant/Third-Party Plaintiff AmQuip Corporation ("AmQuip") has filed a "Petition to Mold the Verdict" in which it requests that the Court award it costs and fees (as well as prejudgment and postjudgment interest) on a special verdict rendered by a jury in its favor against Third-Party Defendant Volair Contractors, Incorporated ("Volair"). Volair does not dispute the amount of prejudgment and postjudgment interest sought by AmQuip, but does object to the amount of attorneys' fees AmQuip has requested. Volair argues that there is an "insufficient showing that the fees are reasonable."
Resp. of Volair Contractors to AmQuip Corp.'s Pet. to Mold the Verdict ¶ 3.
Id. ¶ 4.
While the term "mold the verdict" does not appear to be a part of Delaware jurisprudence, the Court understands the procedural posture of this case to now implicate both Superior Court Civil Rules 49(a) and 58(2). For the reasons that follow, the Prothonotary is directed to enter judgment in favor of AmQuip as set forth below.
That rule provides in pertinent part that the Court "may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact." Super.Ct.Civ.R. 49(a).
That rule provides that upon the rendering of a special verdict, "the Court shall promptly approve the form of the judgment and the Prothonotary shall thereupon enter it in the judgment docket." Super.Ct.Civ.R. 58(2).
2. This matter began as a personal injury claim filed by Richard A. Breece ("Breece") against AmQuip and Pettinaro Construction Company ("Pettinaro") based on injuries Breece suffered on July 26, 1999. Breece fell through a hole in a roof while working in the course and scope of his employment with Volair. In order to facilitate the installation of commercial heating and air conditioning units on top of a building, Volair had leased a crane from AmQuip; AmQuip also provided a crane operator, defendant Edward Gutierrez ("Gutierrez") to Volair. While lifting a heating and air conditioning unit, two of the crane's wheels lifted from the ground, causing the unit to drop onto the roof. Breece fell as he sought to avoid the potential hazard of the descending unit.
As part of the crane rental contract between AmQuip and Volair, Volair had agreed to indemnify AmQuip for any injury to a Volair employee that was caused by Volair and for which AmQuip could be held liable. The agreement specifically provided that Volair:
absolutely and unconditionally warrants and agrees to indemnify, reimburse, save harmless and defend AmQuip Corporation, its subsidiaries, affiliates and their respective shareholders, directors, officers, employees (loaned, borrowed, or otherwise), successors and assigns, of and from any and all claims, demands, liabilities, obligations, damages, costs and expenses, including without limitation counsel fees and costs, of all and every kind or character whatsoever without limitation, which may arise under, by reason of or related to this agreement, the rental, the handling, moving or installing of goods, equipment or materials and/or any default in payment.
Pursuant to the agreement, AmQuip then demanded that Volair defend and indemnify it for any liability AmQuip may have been found to have relative to Breece's injuries. When Volair declined to defend and indemnify AmQuip, Amquip filed a third-party complaint naming Volair as a defendant. AmQuip subsequently settled with Breece in the amount of $400,000, an amount that AmQuip and Volair subsequently agreed was reasonable.
Because Volair declined to defend and indemnify AmQuip on the original suit brought by Breece (as well as to indemnify AmQuip for the $400,000 AmQuip and Breece eventually settled upon), AmQuip's third-party action against Volair went to trial; the issue at trial centered on which party would ultimately be responsible for the $400,000 settlement between AmQuip and Breece, and the costs and attorneys' fees associated therewith. AmQuip's claim against Volair was based on the theory that Gutierrez was a "borrowed servant" of Volair at the time of the accident and therefore Volair should answer for its borrowed servant's negligent operation of the crane it had rented from AmQuip. Volair disputed that Gutierrez was its "borrowed servant."
Delaware case law recognizes the "borrowed servant" doctrine, under which "an employee, with his consent, may be loaned by his general employer to another to perform specific services and. . . in the course of and for the purpose of performing such services. . .may become the employee of the specific rather than the. . .general employer." On May 6 and 7, 2002, a jury trial was held on the issue of whether or not Gutierrez was Volair's "borrowed servant." A special verdict sheet was submitted to the jury that asked only, "Was Edward Gutierrez the `borrowed servant' of Volair Contractors, Incorporated?" The jury found that Gutierrez was in fact Volair's "borrowed servant."
Richardson v. John T. Hardy Sons, Inc., 182 A.2d 901, 902 (Del. 1962) (citing Restatement (Second) of Agency § 227 (1957)).
Following the rendering of the special verdict, AmQuip and Volair considered, at the Court's request, possible post-trial mediation of Volair's indemnification duty. When Volair determined that it did not believe mediation would likely be successful, AmQuip filed the petition currently under consideration. As part of the petition, AmQuip submitted its billing sheets summarizing its legal fees and costs of $121,838.31. That amount represents hours AmQuip billed both as a defendant in Breece's underlying lawsuit and as a third-party plaintiff in its own third-party complaint to enforce the indemnification provision in its contract with Volair. 3. In its petition, AmQuip relies on Pike Creek Chiropractic Ctr., P.A. v. Robinson to support its argument that "Volair is liable by way of contractual defense and indemnification for any and all claims, demands, liabilities, obligations, costs and expenses on. . .[Breece]'s cause of action against AmQuip, specifically including the $400,000.00 contribution of AmQuip. . .toward the reasonable settlement of. . .[Breece]'s claims." AmQuip contends that it can recover this amount because by demanding that Volair defend and indemnify it, Volair was given proper notice and an adequate opportunity to defend against Breece's underlying claim. AmQuip contends that the $121,838.31 in fees and costs it seeks to recover is reasonable "in consideration of the issues faced by AmQuip's counsel in. . .defending against the underlying action brought by. . .[Breece] while simultaneously presenting the contract action directed at Volair."
637 A.2d 418 (Del. 1994) (holding "where indemnification is required and the indemnitor has been given proper notice of the pending litigation and an adequate opportunity to defend, the indemnitee is entitled to recover its costs and attorneys' fees for the expenses incurred in its defense of the action giving rise to the claim to indemnification and in enforcing its right to indemnification.").
AmQuip Corp.'s Pet. to Mold the Verdict ¶ 12.
AmQuip Corp.'s Reply in Supp. of its Pet. to Mold the Verdict at 1.
In response, Volair argues only that AmQuip's reported hours are "strongly questionable." Volair notes that of the approximately 805 hours AmQuip billed throughout its litigation with Breece and with Volair, "some 664 hours [were] billed [by AmQuip's Pennsylvania counsel after]. . .Volair was joined," and AmQuip's local counsel billed "just over 67 hours. . .[after] Volair. . .was joined[,] [for a total of 731 hours]," but that Volair had billed only "510 hours [in the same time period]." Volair argues that "the dimension of this [221 hour] discrepancy creates a serious question as to the reasonableness of the cumulative time that AmQuip is asking Volair to pay." In sum, "Volair concedes AmQuip's entitlement to interest (subject to appeal rights), and concedes AmQuips entitlement to reasonable attorneys' fees, [but contends that] AmQuip has not established that the amount of fees sought is reasonable."
Resp. of Volair Contractors to AmQuip Corp.'s Pet. to Mold the Verdict ¶ 4.
Id.
Id. ¶ 6.
Id. ¶ 11 (emphasis in original).
4. Superior Court Civil Rule 49(a) provides in pertinent part that the Court "may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact." Superior Court Civil Rule 58(2) provides that upon the rendering of a special verdict, "the Court shall promptly approve the form of the judgment and the Prothonotary shall thereupon enter it in the judgment docket." While Superior Court Civil Rule 58(3) states that the entry of a judgment "shall not be delayed for the taxing of costs," the Advisory Committee Note to Federal Rule of Civil Procedure 58 indicates that "it may be more efficient to decide fee questions before an appeal is taken so that appeals relating to the fee award can be heard at the same time as appeals relating to the merits of the case." Attorneys' fees must of course be reasonable.
Super.Ct.Civ.R. 49(a).
Super.Ct.Civ.R. 58(2).
Super.Ct.Civ.R. 58(3).
Which is substantially similar to Superior Court Civil Rule 58 with the exception that the Federal Rule provides that "Entry of the judgment shall not be delayed, nor the time for appeal extended, in order to tax costs or award fees, except that, when a timely motion for attorneys' fees is made. . .the court, before a notice of appeal has been filed and has become effective, may order that the motion have the. . .effect [of tolling the time for appeal until the entry of the order disposing of the fee motion]." Fed.R.Civ.P. 58.
Fed.R.Civ.P. 58. advisory committee's note.
See Prof. Cond. R. 1.5.
5. After reviewing the billing sheets AmQuip submitted as a part of its petition, the Court observes that from January 3, 2001 (the date AmQuip filed its third-party complaint) forward, AmQuip's records reflect time billed both in defending the suit that Breece had brought against it and in the suit that it had brought against Volair to enforce its contract.
See Ex. "C" to AmQuip Corp.'s Pet. to Mold the Verdict.
AmQuip has therefore through its records substantiated the dual defendant/third-party plaintiff status that it claims in its petition.
Volair has attacked AmQuip's requested attorneys' fees and costs only in the most general way. It does not specifically detail what AmQuip charges it particularly disputes. At least one other court has held, however, that "evidence of time expended by counsel and the charges made. . .is the preferred basis upon which a trial judge can formulate a reasonable award. . . ."
McGinnis v. McGinnis, 338 S.E.2d 159, 162 (Va.Ct.App. 1985) (holding that in "vigorously contested" divorce action, proper amount of attorneys' fee award could be determined from an examination of the record).
Here, Volair's argument appears to be that AmQuip's requested fees are unreasonable based solely on a 221-hour "discrepancy" with its own billed hours, but AmQuip's records reflect that its additional hours were reasonably necessary given AmQuip's dual condition from January 3, 2001 onward. The litigation of this case after that date was complicated, as reflected by the docket sheet. For instance, AmQuip had to consider several discovery-related matters in the suit Breece filed against it (e.g., Dkt. #39, #44, and #68), defend against a cross-claim Volair brought against it (e.g., Dkt. #50, 56, 70, 100), defend against a motion for summary judgment Volair filed against it (Dkt #70, #82), and prosecute its own motion for summary judgment against Volair (Dkt. #102, #104, #105).
AmQuip has stated that it would provide expert testimony relative to its requested fees, but that is unnecessary; "[t]he services of an attorney, when rendered in litigation before the same court that is passing on the value of such services, may, of themselves, constitute evidence from which the court alone, unaided by opinion of others as to value[,]. . .may reach a conclusion."22 After reviewing the records it has submitted, the Court finds that AmQuip's requested attorneys' fees are reasonable, and, as stated, Volair does not otherwise dispute AmQuip's requested interest on the $400,000 amount of settlement with Breece. The Court will therefore award AmQuip its requested fees, as reflected by its records.
AmQuip Corp.'s Reply in Supp. of its Pet. to Mold the Verdict at 1. 227 AM. JUR. 2D Attorneys at Law § 330 (1997).
6. Having found the amount of fees and costs requested by AmQuip to be reasonable given its simultaneous action in the overall litigation, and because Volair does not contest the amount of prejudgment and postjudgment otherwise requested by AmQuip, the Prothonotary, pursuant to the Court's power under Superior Court Civil Rules 49(a) and 58(2), shall enter a form of judgment reflecting the following award in favor of AmQuip:
Settlement: $400,000.00
Attorneys' fees and costs: $121,838.31
Prejudgment interest: $ 24,750.00
Postjudgment interest: $ 2,212.23
Total: $548,800.54
IT IS SO ORDERED.