Fleming v. Montana Schools Group Ins. Auth. [07/07/10] 2010 MTWCC 25 ARM 24.5.342 provides that documented long-distance telephone and postage expenses are generally found reasonable. However, where claimant’s attorney does not keep track of specific charges – but rather, charges claimants a $20 flat fee for postage and long-distance telephone charges – the Court held that the predetermined flat fee does not qualify as “documentation” and denied claimant’s request to recover these costs. |
Fleming v. Montana Schools Group Ins. Auth. [07/07/10] 2010 MTWCC 25 ARM 24.5.342 neither specifically allows nor prohibits the recovery of costs for a claimant’s travel to attend her deposition or for trial; however, it provides in pertinent part that “[t]he reasonableness of a given item of cost claimed is judged in light of the facts and circumstances of the case.” The Court has previously disallowed such costs and the facts of this case do not support the claimant’s attempt to recover travel costs for attending her deposition and the trial in Montana where claimant had mixed motives for relocating to Arizona; where claimant maintains a home and regularly returns to Montana; and where claimant’s husband was residing in Montana at the time of her deposition. |
Russell v. Watkins & Shepard [08/17/09] 2009 MTWCC 27 Petitioner cannot recover costs associated with obtaining medical records which do not relate to the medical condition which was adjudged compensable. While the Court relied on these records in its findings of fact, the only findings made from these records were findings which led the Court to conclude that these medical conditions were not caused by Petitioner’s industrial accident. |
Russell v. Watkins & Shepard [08/17/09] 2009 MTWCC 27 Although Petitioner requested costs associated with his counsel’s travel to Phoenix, Arizona, for depositions, Petitioner prevailed on none of the issues for which his counsel traveled to Phoenix, and therefore those costs are not recoverable. |
Russell v. Watkins & Shepard [08/17/09] 2009 MTWCC 27 Typically, this Court allows recovery of an expert’s “consultation” or “preparation” time only if the expert testifies at deposition or at trial. Where an expert conducted an IME and then testified by deposition, the examination was conducted as part of the “preparation,” and therefore is a recoverable cost. |
Russell v. Watkins & Shepard [08/17/09] 2009 MTWCC 27 Where a doctor did not testify at trial or by deposition, but his report was admitted into evidence and the Court relied upon it in reaching a decision, the expert witness fee requested by Petitioner is disallowed where the Court cannot ascertain from the information provided as to how much of the requested cost was associated with the preparation of the report, or how much was “consultation,” trial preparation, or preparation for deposition testimony. |
Russell v. Watkins & Shepard [08/17/09] 2009 MTWCC 27 Petitioner is not entitled to recover the costs associated with the deposition of an expert witness whose testimony regarded an issue upon which Petitioner did not prevail. Although Petitioner argued that he deposed certain expert witnesses not only for the sake of their expert testimony but also to obtain factual testimony about his carbon monoxide exposure, these parties were not witnesses to Petitioner’s carbon monoxide exposure and did not offer evidence which the Court relied on in concluding that Petitioner was exposed to carbon monoxide and that this exposure caused his cognitive impairment – the issue upon which Petitioner prevailed. |
Heth v. Montana State Fund [07/01/09] 2009 MTWCC 19 Petitioner’s half of the expense for a post-trial mandatory appellate mediation conference are not recoverable, even though Petitioner was the appellee and ultimately prevailed on appeal. This Court previously concluded that the appellate mediator’s fee is not a recoverable cost under ARM 24.5.342. Preston v. Transportation Ins. Co., 2005 MTWCC 46, ¶ 5. Furthermore, M.R.App.P. 7(4)(f) unequivocally states that the parties to an appeal “shall share the mediator’s fee and incidental expenses equally.” Therefore, Petitioner cannot recover his share of the fee as a cost under ARM 24.5.342. |
Heth v. Montana State Fund [07/01/09] 2009 MTWCC 19 Under ARM 24.5.342(6), the Court may award costs not enumerated in ARM 24.5.342(4) if those costs are in accordance with the principles of ARM 24.5.342(3). The costs Petitioner incurred post-trial from a medical management company – which were not submitted into evidence and therefore not considered by the Court in reaching its determination – are not recoverable costs. |
Rau v. Montana State Fund [07/10/08] 2008 MTWCC 34 Where an expert witness did not testify by trial or by deposition, but his report was introduced into evidence and was relied upon by the Court in reaching its decision, some of his fee may be taxable as a cost. However, since Petitioner did not break out the fee for the preparation of the expert’s report from fees for “consultation,” trial preparation, and preparation for deposition testimony, the Court will sustain Respondent’s objection to the fee. |
| Rau v. Montana State Fund [07/10/08] 2008 MTWCC 34 Where an expert witness did not testify by trial or by deposition, and his report was not introduced into evidence, his fee is not recoverable as a cost under ARM 24.5.342. |
Porter v. Liberty Northwest Ins. Corp. [03/06/08] 2008 MTWCC 12 Where Petitioner prevailed on some issues, but not on the issue related to his cervical condition, Petitioner cannot recover costs associated with the deposition of a doctor whose testimony related solely to the cervical condition. |
Porter v. Liberty Northwest Ins. Corp. [03/06/08] 2008 MTWCC 12 Under ARM 24.5.342(6), items of cost not specifically listed in the rule may be awarded by the Court if the Court finds the item to be reasonable in light of the facts and circumstances of the case. In this case, the Court does not find that Respondent’s acquiescence to Petitioner’s request for an emergency trial in Helena constitutes circumstances justifying an award of costs for travel and lodging of Petitioner’s counsel. |
Heffner
v. Montana State Fund [07/27/07] 2007 MTWCC 34
The language of ARM 24.5.342 is unambiguous and only allows for a prevailing
claimant to recover costs. Moreover, both this court and the Montana
Supreme Court have specifically held that an award of costs is not available
to insurers. Montana Contractor Compensation Fund v. Liberty Northwest
Ins. Corp., 2002 MTWCC 28, ¶ 3, citing Jaenish v. Super
8 Motel, 248 Mont. 383, 812 P.2d 1241 (1991). Therefore, although
Respondent prevailed, since it is not a claimant, its application for
costs is denied. |
Mack
v. Transportation Ins. Co. [06/11/07] 2007 MTWCC 19 Where
Petitioner’s deposition was taken both for his claim in the Workers’
Compensation Court as well as his claim in District Court, Petitioner
is only entitled to 50% of the costs associated with taking his deposition.
|
Briese
v. ACE American Ins. Co. [02/17/06] Under the rules of
the Workers’ Compensation Court, the Court may grant reasonable
costs. ARM 24.5.342. The Court has wide discretion to determine what
is reasonable. The Court finds Petitioner’s claim for the cost
of an expert witness fee to answer written questions asked in a letter
from Petitioner is unreasonable where Petitioner was given the opportunity
to ask the expert questions at a deposition paid for by Respondent. |
Briese
v. ACE American Ins. Co. [02/17/06] Under the rules of
the Workers’ Compensation Court, the Court may grant reasonable
costs. ARM 24.5.342. The Court has wide discretion to determine what
is reasonable. The Court finds the claim for the cost of a copy of a
deposition transcript to be reasonable because a deposition transcript
is generally necessary to prepare for trial and examination of witnesses,
and to provide guidance in writing proposed findings of fact and conclusions
of law. |
| Van Vleet v. Montana Assoc. of Counties [03/01/05] 2005 MTWCC 10 The signature of an attorney on a memorandum of costs constitutes his or her certification that the costs were incurred and are reasonable, and it is ordinarily unnecessary to provide the actual documentation for such costs even though Rule 24.5.342 requires that documentation regarding some costs be maintained. However, where the opposing party questions the costs based on a failure to provide documentation for the requested costs, the Court will direct the production of the documentation. |
| Derlatka v. Pacific Employers Ins. Co. [9/14/98] 1998 MTWCC 68 ARM 24.5.342 provides that documented photocopy, long-distance telephone, and postage expenses are generally found reasonable. Although respondent wanted further specification regarding telephone and postage charges (for instance, the identity of persons called) the Court approved the costs based on counsel's signature on the bill of costs representing the specific items were related to the case. Respondent's objection to the amount charged for photocopying is overruled where the Court finds the amount reasonable in light of charges made by the Court itself for copying and by the State Fund. Fax charges were disallowed based upon unanimous indication from counsel attending a rules committee meeting, including counsel in this case, that such charges are not ordinarily passed on to clients (see ARM 24.5.342(5)(c).) |
| Wall v. National Union Fire Ins. Co. [9/14/98] 1998 MTWCC 65 Insurer's objection to claimed costs for photocopying, telephone charges and postage were overruled where ARM 24.5.342 provides that documented photocopy, long-distance telephone, and postage expenses are generally found reasonable. Although respondent wanted further specification as to, for instance, the identity of persons called, the Court was satisfied with counsel's signature on the bill of costs representing the specific items were related to the case. However, deposition costs were disallowed because the particular deposition was not filed with the Court (see ARM 24.5.342(4)(a).) Fax charges were disallowed based upon unanimous indication from counsel attending a rules committee meeting, including counsel in this case, that such charges are not ordinarily passed on to clients (see ARM 24.5.342(5)(c).) |
| Bouldin v. Liberty Northwest Ins. Corp. [1/22/98] 1998 MTWCC 3 Pro sé claimant who prevailed at trial filed Memorandum of Costs seeking $805.00 for "loss of time from work." Cost claim denied where there are no provisions in the Workers' Compensation or Occupational Disease Acts, nor in the rules of the Workers' Compensation Court, for lost work time as a recoverable cost. |