Hartman v. Associated Truck Lines
444 N.W.2d 159
Mich. Ct. App.
1989
Check Treatment

*1 426 426 TRUCK LINES v ASSOCIATED HARTMAN 5, 1988, Detroit. Decided at Submitted October Docket No. 103414. 17, 1989. July attorney under a retained an In 1982 John Hartman Wayne bring Circuit Court an action in seeking payment insurance benefits of no-fault automobile Borman, J., court, Susan D. Truck Lines. The trial Associated 1985, judgment granted summary in in award- favor $40,061.16 judgment. plus ing plaintiff grant summary Appeals the trial court’s Court of affirmed curiam, unpublished per judgment decided No- opinion in an 89927). (Docket subsequently 25, Plaintiff 1986 No. vember in the sought in the trial court an award of $20,000. court, finding that defendant had The trial amount of plaintiff, no-fault benefits refused act, $5,804 to the no-fault awarded making stating the award was it considered that the factor spent by senior "the number of hours which should have secretary attorney, attorney, by a clerk or an associate matter, appro- multiplied by representing plaintiff person.” appealed. priate hourly Plaintiff rate for each Appeals held: The Court of evaluating a trial court’s 1. The no While there is fees is reasonableness. award computing the reasonableness of (1) fees, professional guidelines must considered: (2) time and controversy the results labor amount incurred; nature and Here, first the trial court considered the client. while above, remaining it to consider the mentioned failed two factors References seq.; 2d, seq.; Attorneys 72 et 277 et Costs §§ at Law §§ Am Jur 1771,1772. seq.; Damages 648 et Insurance §§ §§ wrong- damages consequential punitive liability Insurer’s payments contracts. to make due under ful ALR3d or refusal Assoc Truck Lines Moreover, give any weight factors. the trial court failed to fact, delayed years for almost six due to defendant’s Thus, unreasonable conduct. the award of fees cannot *2 be said to be reasonable under the this case necessary and a remand is for a redetermination of the amount attorney fees. remand, 2. On the trial court shall determine whether the award of fees to the no-fault act shall be a portion already paid by plaintiff of the to his attorney or whether it shall be in addition to such amounts already paid. Remanded. Lamb, J., majority’s except R. R. concurred with the decision part for that which directs the trial court determine whether statutory attorney fees awarded the trial court shall be portion of, to, paid already or be in addition paid plaintiff. He would hold that this issue should have majority

been addressed since it was not addressed parties or the court. Attorney Attorney — — 1. and Client Fees Reasonableness. evaluating The a trial court’s award of and, fees is reasonableness while there is no fees, computing the reasonableness of (1) guidelines must be considered: (2) and of the and controversy labor the amount in and the results expenses incurred; professional relationship the nature and with the client. — Attorney — 2. Insurance No-Fault Fees. may pay attorney A court order a no-fault insurer to fees in- pursuing curred an insured in a claim where determines that the insurer refused to unreasonably delayed making proper payment claim or (MCL500.3148[1]; 24.13148[1]). Prejudgment — 3. Interest Interest. purpose prejudgment compen- The an award interest is to prevailing party bringing sate the for the incurred in (MCL receiving, money damages an action and for the 27A.6013). 600.6013;MSA Lasser, Marshall plaintiff. 178 Mich Opinion of the Court Nardis, P.C. Foster, & De

Feikens, Vander Male Feikens), H. for defendant. Robert (by Shepherd R. R. P.J., Doctoroff, Before: Lamb,* JJ. recover no-fault In this action to

Shepherd, $40,061.16 plus benefits, was awarded $19,936.56 judgment interest of prejudgment Court order of a Circuit by way Wayne in 1985. This Court affirmed summary judgment curiam, decided No- opinion per unpublished 89927). (Docket Plaintiff sub- 25, 1986 No. vember in the trial court sequently moved $20,000. trial court allowed $5,804. right, seeking appeals Plaintiff as of fees of requiring order a remand and remand for fur- fee. We larger attorney award a *3 proceedings. ther reviewing the award

The v Nelson for is reasonableness. DAIIE, 226, 235; 359 NW2d App 137 Mich (1984). there is no formula Although reasonableness, should be following guidelines considered: "(1) professional and labor

the (3) results question the amount incurred; the nature relationship with the client.” DAIIE, 573, 588; 321 413 Mich NW2d [Wood Schick, (1982), quoting Crawley v 728, 737; (1973).] 211 NW2d 217 consideration is not limited to a its factors, need not detail of these and the court * by assignment. judge, sitting Appeals Circuit on the Court of v Assoc Truck Lines findings specific as to each factor considered. supra, p Wood, 588. discretion, Absent an abuse finding the trial court’s will be reasonableness upheld. Id. hearing Here, the record of the requested fees issue reveals that the trial court plaintiffs attorney that submit an itemized state- listing claimed, ment the time nature services, and his fee. Plaintiffs listed hourly Stating as his usual $100 fee. that this was partner, not an excessive rate for a senior the trial except court allowed that could have been rate that services performed by an associate or law clerk where the court allowed lesser rates. Plain- objected, stating tiffs that the court should also take into account his responded case, and the court preferred. that its formula was Plaintiffs argued also the court should take including factors, into account other the amount of recovery, responded by and the court noting summary won the case on a motion for

judgment. parties Thereafter, on the number of hours on reached according which to base the to required by the court. The trial court’s order final referred to one factor that was considered, namely, "the number of hours that should have spent attorney, by a senior an associate attorney, ing plaintiff secretary represent- a clerk or agree

in this matter.” argument defendant’s with guidelines *4 implicit in Wood are in the court’s problem formula, we find in this case is the weight By concentrating required hourly attached the court to its formula. hourly rates and the skill perform particular client, tasks for the App 178 Mich into account the first two took clearly the court Wood, Court Supreme our approved by factors reflected i.e., as attorney’s and labor involved. rate and However, emphasis much on too placed that the other did not demonstrate hours deserved. given weight they factors were instance, liability the fact that defendant’s For 500.3148(1); under MCL fees arose 24.13148(1) because defendant plaintiff benefits to refused to no-fault taken into that should have been important factor account. This refusal was plaintiff’s significant delay in a but resulted damages. Plaintiff commenced recovery of no-fault in 1982 this lawsuit to recover no-fault benefits fully has to be resolved. While yet case received prejudgment are aware that 600.6013; MSA to MCL plaintiff compensating purpose 27A.6013 serves bringing the action plaintiff for the Stew- receiving damages, delay money Isbell, 65, 79-80; 399 art v App 155 Mich NW2d (1986), factor important was also an this determining the amount to consider 24.13148(1) 500.3148(1); MSA MCL fees allowed on the nature since it reflects between and his attorney. determinative, important

Although not another not consider was the factor the court did plaintiff’s nature of the DAIIE, Butt attorney. his See (1983). One con- 211, 222-223; 341 NW2d 474 is the risk of a sequence client undertaken dependent fees is attorney’s recover attorney may recovery. the client’s *5 v Assoc Truck Lines nothing may the benefit from the arrangement by recovering larger a fee than merely considering would from result the client, labor and time involved in the lawsuit. The in some may proceed circumstances, be unable to availability with the lawsuit without the of the contingent agreement. fee Once the client recov- obligated however, ers, attorney the client is the contingent fees under the terms fee agreement, notwithstanding the amount which a may trial in Thus, determine be reasonable. reviewing impor- issue, it is reasonableness keep in tant to it mind that is the client who will ultimately pay contingent any, difference, if between a (the fee reasonableness of case) which is ney not contested attor-

fees allowed trial a court under MCL 24.13148(1). 500.3148(1);MSA rigid reasons, For these we conclude that hourly pute adopted by com- responsible fee that defendant is for was unreasonable under the circumstances of reasonable, this case. To the extent we hold a contingent arrangement significant part fee is a attorney-client must which arriving considered at reasonable fee. of computing criterion remains one reasonableness, no there is reject appli- reasonableness any rigid formula, cation of whether based on a contingent arrangement hourly formula, or an totality take fails to into account the special applicable to the case at hand. give present case,

In the court failed any weight to the be- attorney. tween and his We remand for a of an fee that takes into determination R.R. Lamb, Partial Concurrence Dissent Partial relationship plaintiffs the nature of account (i.e., fee), fact his almost six delayed conduct, to defendant’s years due Wood. We guidelines set forth and the other *6 in nothing find emphasize court by the formula used the trial proper that a exercise of discre- case. We hold go to the use beyond tion a trial court requires other rigid and to consider relevant the determining attorney how much of factors in opposite paid by party. fee shall the be It is the whether the fee not clear from record in to was to addition by awarded the trial court be already paid by that which had been the client. This the tried by judge issue should be addressed remand, i.e., statutory desig- the fee on whether portion nates of the actual fee is to be the the by pro- the defendant. statute paid in to the fee shall be addition vides that awarded recovered, the the it is silent on question amount the is to the of whether receive awarded fee from his addition the he received or whether amount of the client awarded client if the has paid should be is already paid, or whether the awarded fee and to be divided between the client proportion. what is not retained. Remanded. Jurisdiction Doctoroff, P.J., concurred. (concurring dissenting Lamb, part

R. R. J. part.) opinion except I concur majority the trial court paragraph last which directs fees statutory to determine whether of, portion awarded the trial court are a or to, paid already in addition be I respectfully client. To this dissent. paid Assoc Truck Lines R.R. Lamb, Partial Concurrence Partial Dissent question appeal raised sole on is whether the trial court’s award fees was reason- able under this case. To question address the between statutory attorney actually the paid injects

to the the client an issue into case this which was not addressed developed record; raised, or in the argued required appeal; briefed, or and not 500.3148(1); determined MCL 24.13148(1) construing cases agree this statute. portion Therefore, I do not with that opinion which directs consideration this nonis- sue.