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