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Bell v. State of Alaska and Harbor Adjustment Svc. (7/23/93), 855 P 2d 1334
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NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
DAVID L. BELL, )
) Supreme Court
Appellant, ) File No. S-5138
)
v. ) Superior Court
) File No. 4FA 91 299 CI
STATE OF ALASKA AND HARBOR )
ADJUSTMENT SERVICE, ) O P I N I O N
)
Appellees. ) [No. 3982 - July 23, 1993]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Jay Hodges, Judge.
Appearances: Debra Fitzgerald and Chancy
Croft, Chancy Croft Law Office, Anchorage,
for Appellant. Frank S. Koziol, Anchorage,
for Appellees.
Before: Moore, Chief Justice, Rabinowitz,
Burke, Matthews and Compton, Justices.
BURKE, Justice.
RABINOWITZ, Justice, with whom COMPTON,
Justice, joins, dissenting.
For the reasons stated in Bailey v. Litwin Corp., 780 P.2d
1007, 1011-12 (Alaska 1989), the superior court's decision is
AFFIRMED.
RABINOWITZ, Justice, with whom COMPTON, Justice, joins,
dissenting.
In Wise Mechanical Contractors v. Bignell, 718 P.2d 971
(Alaska 1986) we noted that:
[T]he objective of awarding attorney's
fees in compensation cases is to ensure that
competent counsel are available to represent
injured workers. This objective would not be
furthered by a system in which claimants'
counsel could receive nothing more than an
hourly fee when they win while receiving
nothing at all when they lose.
Id. at 975 (citation omitted).
In the instant case the Board noted appellant's counsel's
request for an award of enhanced attorney's fees "based on the
alleged contingent nature of this case"(emphasis supplied)
but then failed to explain why it denied the request.1 Given
the Board's apparent misapprehension as to the contingent
nature of attorney's fees in this type of litigation, and the
objective of ensuring the injured worker's access to competent
counsel, I would remand the matter to the Board for the
purpose of requiring an explanation of its rejection of
appellant's request for enhanced attorney's fees.
_______________________________
1. In Wise Mechanical Contractors v. Bignell, 718 P.2d at
975, we recognized that payment of attorney's fees is
contingent upon claimant's success since "[a] contingency
arrangement is ordinarily necessary because most injured
claimants lack the financial resources to pay an attorney an
hourly fee."
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