MacK v. City of Minneapolis

333 N.W.2d 744, 1983 Minn. LEXIS 1158
CourtSupreme Court of Minnesota
DecidedMay 6, 1983
DocketC0-82-357, C3-82-658
StatusPublished
Cited by21 cases

This text of 333 N.W.2d 744 (MacK v. City of Minneapolis) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MacK v. City of Minneapolis, 333 N.W.2d 744, 1983 Minn. LEXIS 1158 (Mich. 1983).

Opinions

PETERSON, Justice.

The issues common to these consolidated appeals are the adequacy of attorney fees allowed to the employees’ attorneys and the constitutionality of Minn.Stat. § 176.081 (1982). Other issues involve the construction of sections 176.081, subd. 7, and 176.-521, subds. 2, 2a. The facts in each case may be briefly stated.

Mack v. City of Minneapolis (Case No. C0-82-357)

David W. Mack, a police officer for the Minneapolis Police Department, was shot while executing a search warrant, resulting in severe anoxic brain damage which left him paralyzed. The facts are detailed in State v. Housley, 322 N.W.2d 746 (Minn.1982).

In February 1980, attorney John D. Mar-iani was retained by Mack’s wife to assert a claim for workers’ compensation benefits. The retainer agreement provided for a 25% contingent fee. The city denied liability, asserting that Mack was “brain dead,” and [746]*746therefore no temporary or permanent disability benefits were payable.

At trial Mariani adduced evidence that Mack was in a “persistent vegetative state,” which was not brain death. The parties also disputed whether the injury to the brain was the sole compensable injury, or whether loss of each function controlled by the brain was compensable. The compensation judge, following a 2-day trial, made findings of fact that Mack was not brain dead and was entitled to disability benefits, that loss of each function was compensable, and that simultaneous injury compensation was payable. Mack was awarded benefits of $541,835. The judge also ordered payment to Mariani of $5,000 as attorney fees, the maximum that a compensation judge could order at that time.

On appeal to the court of appeals, the total benefits payable to Mack were increased to $712,013. Mariani was awarded $450 attorney fees of in connection with the appeal. We denied the city’s petition for a writ of certiorari to review the award, because the petition was untimely.

Mariani thereafter filed an application for excess attorney fees, in the additional amount of $80,000. His petition itemized 143¾ hours of time devoted to the ease. The court of appeals referred the matter to another compensation judge, who had not presided over the compensation hearing. At a hearing held before that judge, Maria-ni testified to the services he performed relative to the case. The petition had not asked for partial reimbursement of excess attorney fees; during the hearing, however, the compensation judge asked Mariani if he was seeking such reimbursement, and he replied that he was. Mariani was awarded fees of $20,000, but his request for partial reimbursement by the employer was denied. Mariani obtained a writ of certiorari; he challenges the adequacy of the attorney fees and denial of partial reimbursement.1

Young v. Minneapolis Moline Company. et al. (Case No. C382-658)

William L. Young injured his back in 1952, while employed by the Minneapolis Moline Company. He received compensation, including payment for 30% permanent partial disability of the back. Young ceased working in 1971, due to his back condition.

In July 1979, attorney David C. Sandberg was retained by Young. The retainer provided for a 25% contingent fee. Sandberg filed a claim petition for permanent total disability benefits from and after 1971 and supplementary benefits. Minneapolis Mo-line filed an answer denying Young was permanently disabled and alleging the injuries were sustained in automobile accidents in 1968, 1970, 1976, and 1979, in which Young had been involved.

In March 1982, Young, Minneapolis Mo-line, and the Custodian of the Special Compensation Fund signed a settlement agreement under which Young was to receive about $12,000 in a lump sum payment from Minneapolis Moline for temporary total disability; the special fund agreed to pay accrued supplementary benefits of $34,651 and continuing supplementary benefits from that date. The agreement provided that Sandberg was to receive $10,000 in attorney fees.

Sandberg petitioned the court of appeals for attorney fees of $10,000 and costs of $253.55. The petition itemized 179.3-204.3 hours of billable time and discussed the difficulties of proving causation due to the prior accidents.

The compensation judge issued an order approving the settlement. He cited Minn. Stat. § 176.521, subd. 2a (1982), under which a settlement agreement is conclusively presumed to be reasonable, fair, and in conformity with chapter 176, where all parties are represented by counsel. The judge ordered that Sandberg be awarded attorney fees of $2,511.09. The court of appeals amended the order, stating that the reasonable value of Sandberg’s services was $7,511.09. Sandberg obtained a writ of cer-tiorari; he argues that the award was inad[747]*747equate, that the court misinterpreted section 176.521, subd. 2a, and that the restrictions on attorney fees contained in section 176.081 were unconstitutional.

1. The first issue, raised in the Mack case, is whether section 176.081, subd. 7, required the city to pay partial reimbursement for excess attorney fees awarded under subdivision 2 of that section.

Under the law applicable to this case at the time of trial, a compensation judge had authority to award up to $5,000 as attorney fees to counsel who obtained workers’ compensation awards for their injured clients. Minn.Stat. § 176.081, subd. 1 (1980).2 Attorney fees in excess of that amount could be granted only upon application to the court of appeals. Section 176.081, subd. 2. The employer may be required to reimburse an injured employee for a portion of his attorney fees under the provisions of section 176.081, subd. 7:

If the employer or insurer shall file a denial of liability, * * * or shall otherwise unsuccessfully resist the payment of compensation or medical expenses, and the injured person shall have employed an attorney at law, who successfully procures payment on behalf of the employee, * * * the court of appeals upon appeal, upon application, shall award to the employee against the insurer or self-employed employer, or uninsured employer, in addition to the compensation benefits paid or awarded to the employee, an amount equal to 25 percent of that portion of the attorneys fees which has been awarded pursuant to this section that is in excess of $250.

Minn.Stat. § 176.081, subd. 7 (1982).

Mariani contends that once the court of appeals determined he was entitled to $20,-000 additional attorney fees, the foregoing statute required the court to order the city to pay 25% of that amount less $250. The compensation judge who awarded the first $5,000 in fees ordered the city to pay $1,187.50 (25% of $5,000 minus $250). The city argues to the contrary that subdivision 7 applies only to fees awarded pursuant to subdivision l.3

We hold that where, as here, the conditions of subdivision 7 are met, such partial reimbursement of excess attorney fees is mandatory. The statutory language states that the court of appeals “shall award” to the employee partial reimbursement for attorney fees which were awarded “pursuant to this section.” Under the provisions of Minn.Stat. § 645.44, subds. 1, 16 (1982), unless another intention clearly appears, the word “shall” is mandatory. By the phrase “pursuant to this section,” the legislature apparently meant to refer to all

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MacK v. City of Minneapolis
333 N.W.2d 744 (Supreme Court of Minnesota, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
333 N.W.2d 744, 1983 Minn. LEXIS 1158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mack-v-city-of-minneapolis-minn-1983.