Jeffrey A. Lapre v. LLC (2014)

RULING ON POSTVERDICT MOTIONS

The plaintiff filed suit in this case in July 2010 claiming that his discharge from employment as a service or maintenance technician with the defendant company on June 30, 2009 amounted to retaliation against him for filing a workers' compensation claim and for exercising other rights under the workers' compensation act, in violation of General Statutes §§ 31–290a.¹  On November 27, 2013, the jury returned a verdict in favor of the plaintiff and awarded him back pay of $52,040, reflecting his wage loss up to the present time minus his actual earnings in other employment.   The jury declined to award noneconomic damages for emotional distress.

The court had earlier ruled, based primarily on the language of the statute, that the issue of back pay was for the jury, but that the issue of punitive damages was for the court to decide.   The parties agreed that the court would decide any issues of front pay or attorneys fees.   The plaintiff now moves for an award of punitive damages, front pay, attorneys fees, interest, and costs.

I. PUNITIVE DAMAGES

The court may award punitive damages in a case arising under General Statutes § 31–290a if the plaintiff proves that the defendant acted with “reckless indifference to the rights of others or an intentional and wanton violation of these rights.”  (Internal quotation marks omitted.)  Sorrentino v. All Seasons Services, Inc., 245 Conn. 756, 779, 717 A.2d 150 (1998).   The plaintiff's evidence does not meet this standard.   Although there was sufficient evidence to support the jury's verdict, the court itself credits the contrary testimony of the defendant's owner/member Lawrence White that the reason for discharging the plaintiff was lack of work for people of the plaintiff's skill level and that the plaintiff's exercise of his rights under the workers' compensation act was not a motivating factor in his discharge.   Clearly, in the court's view, White did not act recklessly or intentionally violate the plaintiff's rights under the act.   This point finds particular support from the fact that White did not terminate the plaintiff immediately upon learning of the plaintiff's need for surgery.   Further, White later made an effort to determine whether he had an obligation under the act to hold the plaintiff's position open during his recovery, which the defendant did do.   Therefore, the court denies the plaintiff's request for punitive damages.

II. FRONT PAY

The plaintiff requests front pay rather than reinstatement with the defendant.  “Front pay has been identified as an equitable remedy designed to compensate employees financially where reinstatement of the employee would be impracticable or inadequate.”  Barry v. Posi–Seal International, Inc., 36 Conn.App. 1, 15–16, 647 A.2d 1031, cert. denied, 231 Conn. 942, 653 A.2d 822 (1994).   Courts generally reserve the remedy of front pay for cases in which the plaintiff has no reasonable prospect of alternative employment.   Id., 12 n.7.

Plaintiff is now working as a supervisor with a different property management company and currently receives about the same hourly wage he received from the defendant when discharged.   Plaintiff has received several raises with his current employer.   It is therefore speculative to say that he would have earned more had he remained with the defendant.   Indeed, it is speculative to say that the plaintiff would even have remained employed with the defendant, given the more than four-year time period that has elapsed since his discharge and the fact that the defendant is a small company that retains the flexibility to discharge employees at will for nondiscriminatory, business-related reasons.   Therefore, the court declines to award front pay.

III. ATTORNEYS FEES

“General Statutes § 31–290a(b)(1) directs courts to award reasonable attorneys fees to employees who prevail in plenary civil actions for discriminatory or retaliatory discharge but leaves discretion in the courts to determine the precise amount of the fees to be awarded.”  (Footnote omitted.)   Sorrentino v. All Seasons Services, Inc., supra, 245 Conn. 774.²  The focal point in determining the amount of attorneys fees is the nature of plaintiff's fee agreement with counsel.  Id. “A trial court should not depart from a reasonable fee agreement in the absence of a persuasive demonstration that enforcing the agreement would result in substantial unfairness to the defendant.”  Id., 776.

In this case, the plaintiff's attorneys fees agreement called for the plaintiff to pay a contingency fee of one-third of any recovery if the case settled prior to trial or a fee based on an hourly rate if the case went to trial.  (Plaintiff's Exhibit B.) The plaintiff has submitted time sheets, authenticated in most cases by affidavits, establishing work on the case by six different attorneys, who billed from $300 per hour to $450 per hour, plus one clerical employee.   The total billed comes to $117,357.

Putting aside some initial procedural objections that the defendant makes, which the court rejects, the defendant first argues that the court should award a contingency fee of one-third of the verdict, which in this case amounts to $17,346.67.   The difficulty with the defendant's position is that it overlooks the provision in the fee agreement calling for the plaintiff to pay attorneys fees on an hourly rate if the case goes to trial.   The court cannot ignore this provision.   See Noel v. Ribbits, LLC, 132 Conn.App. 531, 535, 35 A.3d 1078 (2011) (when fee agreement provided for contingency fee “or an award of reasonable attorneys fees, whichever is greater,” trial court erred in relying solely on contingency provision and in failing to consider the alternate approach).   The court must instead start with the hourly rate figure of $117,357 and determine its reasonableness.

“[T]he initial estimate of a reasonable attorneys fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate ․ The courts may then adjust this lodestar calculation by other factors ․ For guidance in adjusting attorneys fees, Connecticut courts have adopted the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir.1974).   The Johnson factors are (1) the time and labor required, (2) the novelty and difficulty of the questions, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee for similar work in the community, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation and ability of the attorneys, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client and (12) awards in similar cases.”   (Citation omitted;  internal quotation marks omitted.)  Noel v. Ribbits, LLC, supra, 132 Conn.App. 535 n.6. The court can also apply its own knowledge and experience in determining the reasonableness of the fees requested.   See Smith v. Snyder, 267 Conn. 456, 480, 839 A.2d 589 (2004).

In the court's view, none of the Johnson factors mandates an upward adjustment of the lodestar calculation and the plaintiff does not request one.   Although every case has its unique features and challenges for plaintiff's counsel, this case was essentially a routine one when placed among the totality of matters that come to trial.

Several factors warrant a downward adjustment.   First, the plaintiff did not achieve complete success.   The court granted summary judgment on two of the three counts of the complaint on April 1, 2013, after almost three years of litigation.   In addition, the jury rejected the plaintiff's request for emotional distress damages.

Second, shortly before trial, trial counsel, Attorney Michael Riley, took this case over from Attorney Angelo Cicchiello, who had handled the case from the time of its filing more than three years earlier.   While there may have been some savings that resulted from Attorney Riley's lower hourly rates, there are inevitable inefficiencies in having one attorney take over a case that another attorney who has handled it for over three years.

Finally, there is some degree of “substantial unfairness to the defendant” in an attorneys fee award of $117,357 based on a jury verdict of $52,020.   Sorrentino v. All Seasons Services, Inc., supra, 245 Conn. 776.   We should not “[confuse] adequate compensation [for the plaintiff] with windfall compensation for [plaintiff's] attorneys.”  Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 272, 828 A.2d 64 (2003).

For all these reasons, the court reduces the lodestar amount by 1/3 and awards attorneys fees in the amount of $78,238.

IV. PREJUDGMENT INTEREST

The court has discretion to award prejudgment interest of up to 10% annually under General Statutes § 37–3a to compensate for the loss of money over time.³  Although our courts had occasionally required a separate showing of wrongful detention of money to support an award of prejudgment interest, the Supreme Court has recently clarified that “a wrongful detention of money, that is, a detention of money without the legal right to do so, is established merely by a favorable judgment on the underlying legal claim, so that the court has discretion to award interest on that judgment, without any additional showing of wrongfulness, upon a finding that such an award is fair and equitable.”  DiLieto v. County Obstetrics and Gynecology Group, P.C., 310 Conn. 38, 48–49, 74 A.3d 1212 (2013).

The court has customarily used a 10% interest rate in calculating interest, despite objections that it exceeds the current low interest rates in financial markets.   Unless there are special reasons not to use the 10% rate, such as an agreement of counsel or the request of a government creditor, the court has used the 10% rate across the board, for the benefit of both banks and individuals, so as to minimize any claim of arbitrariness or subjectivity.   The court accordingly uses the 10% rate here.

The plaintiff has presented a chart that apportions the award of $52,040 by calculating the interest at 10% per annum accruing on the amount of wages lost for each year or portion thereof from June 30, 2009 to November 27, 2013.   The plaintiff simply adds these annual amounts, without seeking to compound the interest in any way, to reach a total of $4,174.05.   This approach is reasonable.   The court accordingly awards interest in the amount of $4,174.05.

V. COSTS

The defendant does not challenge the plaintiff's claim of $4,418.15 in costs.

VI. CONCLUSION

In sum, the court denies the request for punitive damages and front pay and orders the defendant to pay $78,238 in attorneys fees, $4,174.05 in interest, and $4,418.15 in costs.

It is so ordered.

Carl J. Schuman

Judge, Superior Court

FOOTNOTES

FN1. Section 31–290a provides in pertinent part:  “(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.(b) Any employee who is so discharged or discriminated against may either:  (1) Bring a civil action in the superior court for the judicial district where the employer has its principal office for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if he had not been discriminated against or discharged and any other damages caused by such discrimination or discharge.   The court may also award punitive damages.   Any employee who prevails in such a civil action shall be awarded reasonable attorneys fees and costs to be taxed by the court ․”.  FN1. Section 31–290a provides in pertinent part:  “(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.(b) Any employee who is so discharged or discriminated against may either:  (1) Bring a civil action in the superior court for the judicial district where the employer has its principal office for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if he had not been discriminated against or discharged and any other damages caused by such discrimination or discharge.   The court may also award punitive damages.   Any employee who prevails in such a civil action shall be awarded reasonable attorneys fees and costs to be taxed by the court ․”

FN2. Section 31–290a(b)(1) provides:  “Any employee who prevails in such a civil action shall be awarded reasonable attorneys fees and costs to be taxed by the court ․”.  FN2. Section 31–290a(b)(1) provides:  “Any employee who prevails in such a civil action shall be awarded reasonable attorneys fees and costs to be taxed by the court ․”

FN3. General Statutes § 37–3a provides in relevant part:  “(a) Except as provided in sections 37–3b, 37–3c and 52–192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable ․”.  FN3. General Statutes § 37–3a provides in relevant part:  “(a) Except as provided in sections 37–3b, 37–3c and 52–192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable ․”

Schuman, Carl J., J.