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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. MISSING
Regular Panel Decision

In Re Willis

The debtor, Trennis Earl Willis, filed for Chapter 7 bankruptcy. An asset in his estate is a personal injury claim, for which he had a contingency fee contract with attorney Frank L. Supercinski. Supercinski sought approval for his fees ($20,000 plus expenses) from a $50,000 settlement of the personal injury claim and approval of a disbursement scheme. Both the Debtor and the Chapter 7 Trustee objected, arguing the contingency fee contract was executory and rejected by the estate. The Court, presided over by Judge Donald R. Sharp, found the contingency fee agreement to be executory and deemed rejected as not assumed by the Trustee. However, applying the common fund doctrine, the Court acknowledged Supercinski's entitlement to fees from the settlement proceeds with priority. Despite this, all of Supercinski's motions (for fees, settlement approval, and relief from stay) were denied due to procedural flaws, such as the settlement not being finalized or approved, and the lack of a settlement agreement copy. The Court clarified that the settlement check is property of the Debtor's estate and must be administered under bankruptcy rules, instructing Supercinski to file a proper application once the settlement is finalized and approved.

Chapter 7 BankruptcyContingency Fee AgreementAttorney's FeesExecutory ContractAutomatic Stay ReliefCommon Fund DoctrineQuantum MeruitTexas LawPersonal Injury SettlementBankruptcy Estate
References
29
Case No. 04-MD-1596
Regular Panel Decision
Mar 20, 2006

In Re Zyprexa Products Liability Litigation

This order by Senior District Judge Weinstein addresses legal fee allocation in a coordinated multi-district litigation against Eli Lilly & Company concerning the prescription drug Zyprexa. Following a partial settlement covering approximately 8,000 individual plaintiffs, the court adopted a proposal from special settlement masters regarding fee caps. The court modified the proposed cap, reducing it from 37.5% to 35% for most recoveries, while maintaining a 20% cap for "Track A" settlements. The special masters are granted discretionary authority to adjust fees within a range of 30% to 37.5% based on individual case circumstances, with appeal rights to the court. The decision emphasizes the court's inherent authority to supervise attorney fees, particularly in quasi-class actions and mass litigations, to ensure fairness and prevent excessive charges to clients, drawing parallels to class action rules and state laws limiting contingent fees.

Mass TortMulti-District LitigationFee AllocationContingency FeesAttorney FeesEthical SupervisionSettlementZyprexa LitigationQuasi-Class ActionJudicial Discretion
References
23
Case No. MISSING
Regular Panel Decision
Feb 21, 2014

Marin v. Constitution Realty, LLC

This case involves an appeal from an order regarding the division of attorneys' fees among Sheryl Menkes (appellant), David B. Golomb, and Jeffrey A. Manheimer (respondents). Menkes, attorney of record for plaintiffs in a personal injury action, had agreements with both Golomb and Manheimer for fee sharing. The primary dispute concerned Golomb's share, contingent on whether the case settled at a specific mediation session (12% fee) or later (40% fee). The court affirmed the lower court's decision, finding the contract unambiguous that the mediation session concluded on a specific date, entitling Golomb to the higher fee, and that Manheimer was entitled to 20% as per his agreement. The court rejected Menkes's arguments based on contract interpretation and professional conduct rules.

Attorney's FeesContract InterpretationMediation AgreementFee DisputePersonal Injury ActionQuantum MeruitProfessional ConductNew York LawSettlement NegotiationsStructured Settlement
References
13
Case No. MISSING
Regular Panel Decision

Buscher v. Bulldog Steel Products

Buscher, an injured worker, settled his workers' compensation claim with Texas General Indemnity (TGI). He and TGI then successfully pursued a third-party action against Bulldog Steel and Bobby Bryant, resulting in a $100,000 settlement, with TGI recouping its $49,000 subrogation interest and Buscher receiving $51,000. Buscher's attorney, Sam Chase, received a contingency fee from Buscher's portion but was denied a statutory attorney's fee from TGI's subrogation recovery by the trial court. Chase appealed, arguing his efforts benefited TGI by making the settlement possible. The appellate court agreed that Chase's services did benefit TGI to some extent, citing the statute requiring apportionment of fees when both claimant's and association's attorneys actively participate. Consequently, the judgment was reversed, and the case was remanded for the proper apportionment of attorney's fees.

Worker's CompensationAttorney's FeesSubrogationThird-Party ActionTexas LawInsurance CarrierSettlementLegal ServicesBenefitJudicial Discretion
References
1
Case No. MISSING
Regular Panel Decision

Adkins v. Hoechst Celanese Corp.

This case addresses whether a Texas trial judge has the authority to change the terms of attorneys’ fee contracts between attorneys and their clients in mass tort litigation that is not a class action. The Appellants, consisting of 49 law firms led by Fleming, Hovenkamp & Grayson, representing approximately 37,000 plaintiffs, challenged a trial court’s order that reduced their contingent fees and expenses from a settlement with Shell Oil Company and Hoechst Celanese Corporation regarding defective polybutylene plumbing systems. The appellate court reviewed general contract law, exceptions (fraud, incapacity), and the inapplicability of class action and common fund doctrines. It also considered whether the settlement agreement itself granted the trial judge such authority. The court concluded that, absent pleading and proof of barratry, fraud, breach of fiduciary duty, incapacity, illegality, class action, or common fund doctrine applicability, a trial judge lacks the power to modify a fully-performed attorney fee contract. Therefore, the court reversed the portions of the appealed judgments dealing with the award of attorneys’ fees and remanded the cases for further proceedings.

Attorney's FeesContingency Fee ContractsContract LawAppellate ReviewMass Tort LitigationTrial Court AuthoritySettlement AgreementTexas LawClass Action InapplicabilityCommon Fund Doctrine Inapplicability
References
26
Case No. MISSING
Regular Panel Decision

In Re Ferguson

The case involves a fee dispute between the Law Office of St. Clair Newbern, III, representing the Chapter 13 Trustee, and the Debtors, represented by Kimberly Stovall. Newbern sought a one-third contingency fee or enhanced lodestar fees for their work on a state court lawsuit involving the Debtors' personal injury claims. The Debtors objected, citing issues with the contingency fee and a fee-sharing arrangement between Newbern and Carl Clarke, an attorney sharing office space. The court ruled that Newbern was not entitled to the full one-third contingency fee due to lack of proper disclosure and notice, and found the fee-sharing arrangement with Clarke violated Bankruptcy Code § 504(a). The court allowed Newbern to recover its lodestar fees and expenses, and permitted the Trustee to retroactively apply to retain Clarke as co-counsel for his actual hourly rate.

BankruptcyFee DisputeContingency FeesJudicial EstoppelFee SharingProfessional CompensationChapter 13Due ProcessDisclosureAttorney Ethics
References
25
Case No. MISSING
Regular Panel Decision

Claim of Burke v. Verizon Services Group

The claimant suffered a work injury in May 2009 and received workers' compensation benefits from the carrier and full wages from the employer. The employer sought reimbursement for wages paid, contingent on a future schedule loss of use award. The Workers’ Compensation Law Judge affirmed the employer's right to contingent reimbursement and awarded benefits for a specific period. The Workers’ Compensation Board upheld the employer's right to future contingent reimbursement but denied counsel fees, citing a lack of current funds. On appeal, the court affirmed the Board’s decision regarding the employer's right to contingent reimbursement but reversed the denial of counsel fees, holding that a lien for counsel fees can attach to future awards, and remitted the matter for reconsideration of counsel fees.

Workers' CompensationReimbursementAdvance PaymentsSchedule Loss of UseCounsel FeesLienAppellate ReviewWorkers' Compensation BoardWages in Lieu of CompensationDisability Benefits
References
8
Case No. 2022 NY Slip Op 05964 [209 AD3d 596]
Regular Panel Decision
Oct 25, 2022

Pirozzo v. Laight St. Fee Owner LLC

Plaintiff Paul Pirozzo sought summary judgment on his Labor Law § 240 (1) claim against defendants Laight Street Fee Owner LLC, Laight Street Fee Owner II LLC, and Sciame Construction, LLC, which was granted by the Supreme Court. The Appellate Division, First Department, affirmed this decision. The plaintiff established a prima facie case by demonstrating that the scaffold he was working on collapsed without an apparent reason. The defendants' arguments that the plaintiff was the sole proximate cause, either by failing to lock scaffold pins or remaining on the scaffold while it was moved, were deemed unavailing. The court noted that these actions, even if proven, would amount to comparative negligence, which is not a defense to a Labor Law § 240 (1) claim, and there was no evidence of specific instructions to the plaintiff that were disobeyed.

Summary judgmentLabor Law § 240 (1)Scaffold collapseSole proximate causeComparative negligenceWorkers' compensation Form C-2Hearsay objectionPersonal knowledgeRecalcitranceAppellate Division
References
9
Case No. 03-09-00682-CV
Regular Panel Decision
Mar 23, 2011

Austin ISD, Self-Insured v. Charles M. Manbeck

This case originated from a workers' compensation dispute where Austin ISD (AISD), a self-insured governmental entity, sought judicial review of a Division of Workers’ Compensation decision regarding the extent of Charles M. Manbeck's injury. Manbeck, the claimant, counterclaimed for attorneys' fees under Labor Code section 408.221(c). AISD later non-suited its judicial-review claim, and the case proceeded solely on Manbeck's counterclaim for attorneys' fees. The district court awarded Manbeck $36,000 for trial-level fees incurred before AISD's non-suit, $17,415 for fees incurred after the non-suit, and contingent appellate attorneys' fees. On appeal, the court affirmed the award of $36,000 for fees incurred prior to AISD's non-suit but reversed and rendered judgment that Manbeck take nothing on the claims for fees incurred after the non-suit and contingent appellate fees, holding that Labor Code section 408.221(c) does not authorize recovery of 'fees for fees'.

Workers' Compensation ActAttorneys' FeesJudicial ReviewExtent of InjurySelf-Insured EntityLabor Code Section 408.221(c)American RuleFee ShiftingStatutory ConstructionSufficiency of Evidence
References
40
Case No. 08-18-00147-CV
Regular Panel Decision
Nov 25, 2019

Texas Mutual Insurance Company v. Anita DeJaynes, Individually and as Next Friend of Alyssa DeJaynes, Noah Matthew DeJaynes, and Emma Michelle DeJaynes, Minor Children

In this worker's compensation case, the Court of Appeals addressed Texas Mutual Insurance Company's appeal concerning the attorney's fee award to the DeJayneses' counsel. Texas Mutual challenged the trial court's decision to commute the attorney's fees into a lump sum and argued against the use of a contingency fee, advocating for an hourly rate calculation. The court affirmed its subject matter jurisdiction and found that, while contingency fees are permissible, the hourly rate used by the attorney improperly included a risk modifier. Consequently, the appellate court reversed the attorney's fee order, remanding it for reconsideration regarding the appropriate hourly rate, while affirming the remainder of the judgment.

Attorney FeesContingent Fee AgreementsFee CommutationStatutory InterpretationAppellate JurisdictionJudicial DiscretionTexas Labor CodeInsurance LitigationRemand OrderLodestar Method
References
50
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