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Esquivel v. Labor Commission of Utah5/23/2000
5)(a) requires that " he reasonable expense of the action, including attorneys' fees, shall be paid and charged proportionately against the parties as their interests may appear." Because CNA has waived its interest in past payments of $21,320, this figure should not be included in CNA's total interest. Instead, CNA's total interest should be based only on its discounted future liability. Therefore, CNA's interest is its discounted future liability divided by the total recovery of $203,507.25.
The attorney fees are $81,402.90, and the costs are $53,596.38. Therefore, the expenses are $134,999.28. If we assume that the expenses are reasonable, then the statute requires CNA to pay the percentage of CNA's interest of $134,999.28.
The statute next requires that " ny fee chargeable to . . . be a credit upon any fee payable by [the Esquivels] for any recovery had against [Gravely]." Id. § 34A-2-106(5)(a). Therefore, the fee chargeable to CNA is to be a credit upon the $134,999.28 fee payable by the Esquivels for the recovery of $203,507.25 had against Gravely.
The Esquivels paid the entire $134,999.28 for expenses out of the $203,507.25 judgment, leaving $68,507.97. The Esquivels are now entitled to reimbursement for CNA's proportionate share of reasonable expenses. Because CNA has not paid its proportionate share at this point, there is a credit owed to the Esquivels. This results in a total balance--part in the form of cash and part in the form of a credit owed.
Next, CNA is entitled to reimbursement for payments of $21,320 already made. However, CNA waived any right to this reimbursement, and therefore, we skip step (b) and move on to step (c).
Step (c) provides that " he balance shall be paid to [the Esquivels] to be applied to reduce or satisfy in full any obligation thereafter accruing against ." Id. § 34A-2-106(5)(c). Therefore, the total balance consisting of $68,507.97 (which was left after the Esquivels paid all the expenses) plus the credit CNA owes the Esquivels for its share of expenses should be paid to the Esquivels. However, because a double recovery is not permitted, the Esquivels must apply this total balance to reduce or satisfy CNA's future obligation.
Therefore, if the total balance is greater than CNA's discounted future liability, then CNA's discounted future liability is totally offset and CNA has no further obligation to the Esquivels. However, if the total balance is not greater than CNA's discounted future liability, CNA must resume payments once the amount of the total balance has been offset and then continue until such time as the youngest child reaches eighteen (January 5, 2008).
III. WAIVER OF RIGHT TO CHALLENGE DISCOUNT
In their motion for review of the Industrial Commission's order, Redd Roofing and CNA requested that their liability for future payments to the Esquivels be discounted to present value according to commission regulations. The Esquivels made no objection to this request in their response to the motion for review of the commission's order. The appeals board granted the request made by Redd Roofing and CNA and allowed a present value discount rate of 8% to be applied to the liability for future benefits. Therefore, the appeals board determined that CNA's future liability should be $83,000.
The Esquivels did not raise an objection to the request made by Redd Roofing and CNA to discount the liability for future benefits until the matter was brought before the Utah Court of Appeals on review. See Esquivel v. Labor Comm'n, 1999 UT App 9, -23, 973 P.2d 440. The general rule is that objections or questions not raised or urged in the agency proc
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