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the employer’s behalf and for the employer’s benefit.” H. Conf.
Rept. 100-998, at 203 (1988) (emphasis added). “[I]n effect the
employee was acting as an agent of the employer in paying for the
item.” Id. at 202 (emphasis added).
The attorney’s fee paid by NCMI to Mr. Biehl’s attorney does
not fit within this rubric. The attorney’s fee is not a business
expense that NCMI incurred through the use and employment of an
employee acting on its behalf. There is no evidence, as there
cannot be, that NCMI instructed Mr. Biehl to incur the contingent
attorney’s fee on NCMI’s behalf in order to further NCMI’s
business of manufacturing and distributing medical supplies.
When Mr. Biehl incurred the obligation to pay the attorney’s fee,
he had long before ceased being an employee of NCMI. He cannot
be said to have been performing services as an employee of NCMI
when he signed the fee agreement with Olimpia, Whelan, & Lively,
or when Olimpia, Whelan, & Lively rendered legal services to Mr.
Biehl pursuant to the agreement. Mr. Biehl did not incur the
attorney’s fee “in connection with the performance by him of
services as an employee” of NCMI.
We acknowledge that, in a remote or an attenuated sense, the
attorney’s fee arose out of Mr. Biehl’s performance of services
because it was his prior employment and performance of services
as an employee and the termination of the employment relationship
that gave rise to the lawsuit. However, this is not an issue
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