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Bell Atlantic-Delaware5/17/2005
finding that Verizon paid Saporito PIP benefits exceeding its declared coverage maximum. Indeed, the trial judge himself virtually admitted that neither the record supported nor did logic confirm his ultimate, speculative conclusion to award Saporito a double recovery:
For the Court to uphold [Saporito's] position, the Court would have to find that Bell Atlantic-Delaware . . . voluntarily and actually assumed greater liability for PIP coverage than the minimum required and mandated by statute. And there's no evidence in this case that that happened.
The stated PIP coverage, the maximum settlement for $15,000 with Lankford, and the testimonial evidence all demand a finding that the payments Verizon made to Saporito in excess of its $15,000 PIP policy were workers' compensation benefits. On this record, Saporito's windfall -- allowing him to insulate his recovery from Lankford from the payments in excess of $15,000 erroneously documented as PIP thus resulting in a double recovery -- is not supported by the record and is contrary to statutory public policy.
IV.
Verizon next argues that the trial judge, irrespective of the base amount of the workers' compensation lien, abused his discretion by ordering it to pay 3.74 percent of Saporito's attorneys' fees and out-of-pocket expenses. Under our holding in Keeler v. Harford Mutual Insurance Company, "not requiring workers' compensation carriers to bear part of the cost of third party tort litigation where recovery results in reimbursement of benefits is inequitable and contrary to the language of the [apportionment] statute." We review the assessment of attorneys' fees and costs for abuse of discretion.
Verizon contends that the trial judge erred in applying Keeler when he failed to examine or review the amount of time and effort that Verizon's counsel contributed to the third-party action. The present record, however, establishes otherwise. The record shows that the trial judge specifically addressed Verizon's assistance in the third-party action, and properly concluded that Verizon's counsel was involved to a limited extent before the Lankford settlement. Our reversal of the lien calculation does not implicate the trial judge's analysis on this issue. Accordingly, we find no abuse of discretion in the trial judge's determining of the percentage of fees to be paid by Verizon.
V.
Because the evidence presented demonstrates that Verizon intended all payments to Saporito recovered from Lankford in excess of its maximum PIP coverage to be workers' compensation payments, and because Delaware employment and labor law favors the policy of reimbursing employer and insurer accident-related payments from third-party settlement proceeds, the trial judge's finding that Verizon paid Saporito only $46,299.10 in workers' compensation benefits is unsupported by the record. Accordingly, that judgment of the Superior Court is REVERSED and REMANDED. The judgment awarding fees and costs to Saporito is AFFIRMED with instructions to enter final judgment consistent with this Opinion.
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