In re the Arbitration between Simmons & Government Employees Insurance

59 A.D.2d 468, 400 N.Y.S.2d 99, 1977 N.Y. App. Div. LEXIS 13950
CourtAppellate Division of the Supreme Court of the State of New York
DecidedDecember 5, 1977
StatusPublished
Cited by18 cases

This text of 59 A.D.2d 468 (In re the Arbitration between Simmons & Government Employees Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Arbitration between Simmons & Government Employees Insurance, 59 A.D.2d 468, 400 N.Y.S.2d 99, 1977 N.Y. App. Div. LEXIS 13950 (N.Y. Ct. App. 1977).

Opinion

OPINION OF THE COURT

O’Connor, J.

ISSUE

The question raised by this appeal is whether an arbitra[470]*470tor’s award of $2,149 in counsel fees is completely irrational when the attorney’s energies were expended in successfully recovering a total claim of $105 on behalf of his client pursuant to the provisions of the Comprehensive Automobile Insurance Reparations Act (the no-fault law). We hold that despite the disparity between the counsel fee awarded and the underlying claim the arbitrator’s award was a proper one. It was error to vacate the award and it should be reinstated.

FACTS

On September 27, 1974 Michael Thompson, insured by the respondent insurer (GEICO), was injured in an automobile accident. He received treatment from appellant Dr. Simmons, to whom he thereafter assigned his claim in the sum of $105. Proper proof of claim was filed on October 24, 1974, but GEICO, contrary to the clear mandate of subdivision 1 of section 675 of the Insurance Law, failed to act within the prescribed 30 days and the claim thereupon became "overdue”. Persistent efforts to collect proved fruitless; on April 10, 1975 Simmons retained counsel, but to no avail. On June 10, 1975, pursuant to subdivision 2 of section 675 of the Insurance Law, arbitration was demanded and GEICO’s subsequent request for a stay of arbitration was successfully opposed by appellant.

Then, and only then, GEICO paid the $105 claim, but made no offer of interest or attorney’s fees, items clearly mandated by statute.

The arbitration hearing followed and resulted in an award to claimant including interest and a $2,149 counsel fee. The arbitrator found that the claim had been duly and properly forwarded to GEICO on October 24, 1974 and that claimant was "concededly” entitled to be paid. The award of counsel fees was predicated upon approximately 21 hours of work at the rate of $100 per hour. That rate was not contravened by GEICO at the hearing.

By order to show cause dated April 8, 1976 GEICO sought to vacate the arbitrator’s award of attorney’s fees, claiming that the amount awarded was unreasonable and punitive in view of the fact that the entire amount of the underlying claim was but $105. GEICO further challenged the actual time allot-[471]*471merits allegedly expended and argued that much of the work was merely clerical and should not be compensated at a $100 per hour rate. On appeal GEICO further argues that much of the time was expended toward supporting the claim for the attorney’s fee rather than for the direct benefit of the claimant himself, and hence was not compensable time. In opposition, claimant argues that GEICO was solely and totally responsible for the expenditure of time when, in direct contravention of the statutory purpose and scheme of the no-fault law, i.e., the prompt payment of proper expenses incurred in an accident, it refused to promptly pay this timely claim. In addition, claimant maintains that it was not proper for Special Term to substitute its judgment for that of the arbitrator.

Special Term vacated the award, finding that it lacked a rational basis, considering the amount involved for the award of the $2,149 fee and hence that the award was improperly punitive in nature. The issue of what a "reasonable” fee would be was remanded for a new hearing before a new arbitrator.

We reverse the order of Special Term, on the law and the facts, with costs, and direct that the arbitrator’s award be reinstated.

THE STANDARD OF REVIEW

The determinations of an arbitrator under the compulsory arbitration provision of the no-fault law are reviewable under the standards of CPLR 7511 (see Mount St. Mary's Hosp. of Niagara Falls v Catherwood, 26 NY2d 493). As stated in Lentine v Fundaro (29 NY2d 382, 383): "Save for 'complete irrationality’, arbitrators are free to fashion the applicable rules and determine the facts of a dispute before them without their award being subject to judicial revision.” When the challenged award is viewed within the context of the underlying purposes and aspirations of the no-fault law, its rationality becomes crystal clear.

THE NO-FAULT LAW

In Montgomery v Daniels (38 NY2d 41, 51) the Court of Appeals, in upholding the constitutionality of the no-fault law, set forth the context in which it was passed, noting that, "it was concluded in all reports that the tort system was plagued by long delays in claim payment.” The tort system, it was held [472]*472(p 51), "placed an inordinate strain on the State’s court systems and judicial resources.” The court noted that the no-fault law sought to cure these ills (p 55) "by * * * guaranteeing prompt and full compensation for economic losses up to $50,000 without the necessity of recourse to the courts, the Legislature acted * * * to eliminate much of the wasted expenditures of premium dollars on expenses extraneous to treatment of injury”.

The court held that the no-fault law had as its purpose (pp 55-56): "to reduce the long delays in the payment of claims experienced under judicial procedures and to lessen the burden on our State courts and judicial resources” (see, also, Musolino v American Consumer Ins. Co., 51 AD2d 1036).

The entire structure and scheme of the no-fault law is consistent with these avowed goals. An insurance company must pay a claim "within thirty days after the claimant supplies proof of the fact and amount of loss sustained.” (Insurance Law, § 675, subd 1.) The failure to comply with this clear directive qualifies the unpaid benefit as "overdue” and, in turn, mandates interest on the now past due claim "at the rate of two percent per month” plus "his attorney’s reasonable fee”. The 2% per month is to be compounded (11 NYCRR 65.6 [f] [1]) and the interest penalty may not be included by the insurer in rate-making calculations (11 NYCRR 65.6 [f] [5]). The reasonable attorney’s fee is based upon "the reasonable value of the legal work performed in obtaining the recovery” (11 NYCRR 65.6 [g] [1]) and such fees similarly may not be included in rate-making calculations (11 NYCRR 65.6 [g] [3]). Once an arbitrator’s award is made, it need not be confirmed into judgment (11 NYCRR 65.7 [a] [23]).

THE LAW

The decision in Jordan v Freeman (40 AD2d 656) sets forth the relevant factors to be weighed in the determination of the value of legal services as "the nature and extent of the services, the actual time spent, the necessity therefor, the nature of the issues involved, the professional standing of counsel, and the results achieved.” Although it is the exception rather than the rule to make an award of attorney’s fees which exceeds the amount of the underlying claim, there are instances where the very nature of the underlying claim itself makes such an award not only reasonable but proper (Matter of Country-Wide Ins. Co. [Barrios], 54 AD2d 879, affd 43 NY2d [473]*473685; Colon v Automatic Retailers Assn. Serv., 74 Misc 2d 478). As noted in Colon, there are cases involving "transcending principles” which completely warrant, as just and proper, the payment of such fees. This is such a case.

Contrary to the entire thrust of the no-fault law, GEICO, in effect, refused to make prompt payment of claimant’s demand, and the record is totally devoid of any facts in justification of that arbitrary and unreasonable posture.

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Bluebook (online)
59 A.D.2d 468, 400 N.Y.S.2d 99, 1977 N.Y. App. Div. LEXIS 13950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-arbitration-between-simmons-government-employees-insurance-nyappdiv-1977.