For the third time in the last four years, Roedel Parsons' has secured a major victory from the Louisiana Supreme Court.  We were asked to file an amicus brief on behalf of a coalition of statewide business associations (LABI and LASIE included), insurers, self-insured funds and self-insured employers in the Cox, Cox and Filo v. LWCC litigation.  At the trial court and the Third Circuit appellate court levels, the courts awarded the Cox, Cox and Filo firm $150,000.00 of damages and then tripled those damages to a total award of $450,000.00.  The damages stemmed from the law firm’s managing partner doing some unnecessary defense work in his office manager’s workers’ compensation claim against the law firm.  Since Cox, Cox and Filo thought the claims should be accepted and LWCC denied the claim, LWCC agreed to assign separate outside counsel for the law firm.  LWCC, however, experienced difficulty in finding a firm in Louisiana to represent Cox, Cox and Filo due to innumerable conflicts with most of the state’s defense firms.  The bad faith statutes under which the state court suit was filed specifically excludes attorney’s fees.  Nevertheless, through some extraordinarily suspect computations of taking Mr. Filo’s total originating fees over a period of time and dividing that average by an estimated total yearly hours, the trial and appellate courts determined that the estimated 67 hours that Mr. Filos supposedly devoted to his firm’s defense was valued at $150,000.00 or approximately $2,300.00 per hour.

Due to the dangerous precedent in valuing a plaintiff attorney’s time at $2,300.00 per hour (virtually every workers’ compensation claim prays for attorney’s fees and penalties), we were asked to weigh in at the Supreme Court by filing amicus briefs to initially grant the writ and then consider the case.  While there were some justices who would have determined that there was no bad faith breach by LWCC, a majority of the court was unable to find that trial court had committed manifest error in finding a bad faith breach of LWCC’s fiduciary duties.

The more important ruling, from the employer community’s perspective, was the fact that all of the justices found that the calculation of damages was speculative and a clear abuse of discretion.  Ultimately, the Supreme Court accepted our argument that even if it was necessary that responsive pleadings and discovery answers had to be filed, the Cox, Cox and Filo form failed to mitigate their damages and, instead, actually inflated their damages by having Tom Filo perform the questionably necessary work.  The Court found that Cox, Cox and Filo, if they actually thought that they were in danger of a default or penalties, could have hired an outside attorney to represent them.  There are many more weeds involved in this particular case, but the bottom line is that the Court valued the time at $300.00 per hour as opposed to $2,300.00 per hour and took away approximately 86% of the award when it reduced the $450,000.00 judgment down to $60,000.00.

As always, this was a team effort, and Brad Guin’s and Stephen Collura’s contributions to the two briefs which we filed were of immeasurable help in getting this result.  Thanks again to these two team members whose excellent work helped secure another major victory at the Supreme Court.