Free Memorandum in Opposition - District Court of Delaware - Delaware

Case 1 :04-cv—OO91 1-Gl\/IS Document 180 Filed 07/24/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
J AN KOPACZ and ESTATE OF CATHY :
KOPACZ, 2
Plaintiffs, : C.A. No. 04-911 GMS
v. 2
DELAWARE RIVER AND BAY AUTHORITY, :
and CRAIG SWETT, 2
Defendants, 1
I AN KOPACZ, 2
Plaintiff : C.A. No. 04-1281 GMS
v. 2 i
DELAWARE RIVER AND BAY AUTHORITY, :
Defendant. :
DEFENDAN T DELAWARE RIVER AND BAY AUTHORITY’S
OPPOSITION TO PLAINTIFF’S FOURTH SUPPLEMENTAL
PETITION FOR COUNSEL FEES AND EXPENSES
Irrespective of the outcome of Plaintiffs Motion to Amend the Judgment and for
Reargument, Plaintiff is not entitled to recover any fees and expenses. As noted by the District Court
in its well-reasoned opinion denying plaintiffs prior motions for attomeys’ fees and costs, such
damages cannot be awarded "unless plaintiff can first establish defendant’s bad faith or
recalcitrance." Opinion at 6, quoting Deisler v. McCormack Aggregates C0., 54 F .3d 1074, 1087
(3'd Cir. 1995). Since the jury found that the accident did not occur, and the Court found that DRBA
was not unreasonable in refusing to pay maintenance and cure, there can be no finding of bad faith
and no award of attomeys’ fees.

Case 1:04-cv-00911-GMS Document 180 Filed 07/24/2006 Page 2 of 3
Moreover, the DRBA relies on the arguments made in its oppositions to plaintiff’ s earlier
motions for fees and expenses, including, but not limited to, the argument that there can be no
recovery of any post trial fees once maintenance and cure have been paid in full. The DRBA also
reserves it right to challenge the amount of fees and expenses}
OF COUNSEL: ROSENTHAL, MONHAIT & GODDESS, P.A.
Mary Elisa Reeves, Esquire
DoNNA ADELSBERGER 1
& ASSOCIATES, P.C. Carmella P. Keener (DSBA No. 2810)
6 Royal Avenue, P.O. Box 530 919 N. Market Street, Suite 1401 q
Glenside, PA 19038-0530 P.O. Box 1070 I
(215) 576-8690 Wilmington, DE 19899-1070
(302) 656-4433
[email protected]
Attorneys for Defendant,
Delaware River and Bay Authority
I Among other challenges, the DRBA maintains that the amount requested is grossly
excessive. Plaintiff has consistently maintained that "the onset of [his] disability, irrespective of
cause, triggered the obligation to pay maintenance." DI 146 at 'll 2, pg. 2. If that was the case, it
would not have been necessary to spend $200,000 to pursue such a claim, which could have
easily been resolved as a matter of law. If all of the contentious factual issues were indeed
relevant to the maintenance and cure question, no award of fees and expenses is warranted
because the Court has already found that there was a legitimate dispute as to those facts, which
was ultimately decided in the DRBA’s favor. The DRBA has never conceded that the verdict
awarding maintenance and cure was correct, however, it chose not to challenge that particular
award for strategic and economic reasons.
2

Case 1:04-cv-00911-GMS Document 180 Filed 07/24/2006 Page 3 of 3
CERTIFICATE OF SERVICE
I hereby certify that on July 24, 2006, I electronically filed with the Clerk of Court
DEFENDANT DELAWARE RIVER AND BAY AUTHORITY’S OPPOSITION TO
PLAINTIFF’S FOURTH SUPPLEMENTAL PETITION FOR COUNSEL FEES AND
EXPENSES using CM/ECF which will send notification of such filing to the following:
Donald M. Ransom, Esquire
Casarino, Christman & Shalk, P.A.
800 N. King Street, Suite 200
P.O. Box 1276
Wilmington, DE 19899
James J. Woods, Esquire
Law Office of James J. Woods, Jr., P.A.
P.O. Box 4635
Greenville, DE 19807
James S. Green, Esquire
Seitz, Van Ogtrop & Green, P.A.
222 Delaware Avenue, Suite 1500
P.O. Box 68
Wilmington, DE 19899

Rosenthal, Monhait & Goddess, P.A.
919 N. Market Street, Suite 1401
P.O. Box 1070
Wilmington, DE 19899-1070
(302) 656-4433