Fred Quave, Claimant, Plaintiff-appellant-cross-appellee, v. Progress Marine, Employer,andamerican Home Assurance Company, C/o American Internationaladjusting Company, Insurance Carrier,defendants-appellees-cross-appellants, 918 F.2d 33 (5th Cir. 1990)

In our original opinion we declined to decide whether the district court erred in awarding attorney's fees to claimant's counsel because we found no separate notice of appeal from that judgment and none was called to our attention. In fact, however, there was a second notice of appeal later filed which appropriately gave us jurisdiction. That notice of appeal was inadvertently overlooked and we now address the issue previously dismissed.

A full recitation of the facts is not necessary as they have been set out in detail previously. This case involved an action to recover benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA). Claimant's counsel submitted an application for attorney's fees to the district court for services rendered in the enforcement proceeding. The district court, in a minute entry, granted partial award for attorney's fees equaling $600.00 and disallowed the remainder.

Original defendants, Progress Marine, Inc. and its insurer, American Home Assurance Company, argue that any award of attorney's fees was improper because claimant's counsel failed to obtain any additional "compensation."¹  He did, however, succeed in recovering an award of prejudgment interest. Defendants argue that an award of interest is not equivalent to an award of compensation, yet fail to cite any authority for this proposition.²  However, defendants do cite Ayers Steamship Co. v. Bryant, 544 F.2d 812 (5th Cir. 1977) which stated that " [a]ttorney's fees can only be assessed against the employer ... when the claimant has successfully claimed coverage which the employer has either totally or partially denied." Id. at 813-14. Quave claimed interest, defendants denied such coverage and ultimately Quave was successful on his claim, at least in part. Accordingly, the petition for rehearing is granted. The previously assessed award of attorney's fees was proper and we AFFIRM.