Frank and Barbara Biehl - Page 30




                                       - 30 -                                         
          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               






Page:  Previous  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  Next

Last modified: May 25, 2011