Jones v. Allstate Insurance Company et al

Filing 211

ORDER and REASONS - The Court, having considered applicable law, the entirety of the record in this matter, including the Magistrate Judge's Report and Recommendation 198 , and the Objections filed by Intervenor Silvestri & Massicot, LLC, the multiple memoranda submitted in support of and in opposition to those objections, the Court approves and adopts the Magistrate Judge's Report and Recommendation, in part, and otherwise rules as stated herein. Accordingly, IT IS ORDERED that the "Motion of Sylvestri & Massicot, L.L.C. to Strike Testimony and Argument Regarding Confidential Communication During Mediation 181 is GRANTED to the extent that any such references be stricken from the record. Moreover, this Court has not cons idered any such communications in its resolution of these motions. IT IS FURTHER ORDERED that the motion for summary judgment filed by S&M 167 and the cross-motion for summary judgment filed by Plaintiffs' counsel Law Offices of John Paul Mass icot 170 are both GRANTED IN PART and DENIED IN PART. IT IS FINALLY ORDERED that each party shall file their respective motions to withdraw funds from the Court's registry per Local Rule 67.3., as stated within document. Signed by Chief Judge Kurt D. Engelhardt on 3/30/2018. (cbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CYRIL C. JONES

CIVIL ACTION

VERSUS

NO.

ALLSTATE INSURANCE COMPANY, ET AL.

SECTION AN@ (3)

15-742

ORDER AND REASONS
The Court, having considered applicable law, the entirety of the record in this matter,
including the Magistrate Judge's Report and Recommendation (Rec. Doc. 198), and the Objections
filed by Intervenor Silvestri & Massicot, LLC (“S&M”), the multiple memoranda submitted in
support of and in opposition to those objections, the Court approves and adopts the Magistrate
Judge's Report and Recommendation, in part, and otherwise rules as stated herein.
Accordingly, IT IS ORDERED that the “Motion of Sylvestri & Massicot, L.L.C. to Strike
Testimony and Argument Regarding Confidential Communication During Mediation” (Rec.Doc.
181) is GRANTED to the extent that any such references be stricken from the record. Moreover,
this Court has not considered any such communications in its resolution of these motions.
IT IS FURTHER ORDERED that the motion for summary judgment filed by S&M (Rec.
Doc. 167) and the cross-motion for summary judgment filed by Plaintiffs’ counsel Law Offices of
John Paul Massicot (“JPM”) (Rec. Doc. 170) are both GRANTED IN PART and DENIED IN
PART as set forth herein.
With respect to the $45,739.65 deposited in the registry of the Court by Allstate Insurance
Company (“Allstate”), IT IS ORDERED that S&M be awarded fees and costs in the amount of
$27,443.79, plus a pro rata share of accrued interest less a pro rata share of the fee assessed for the
administration of the funds. This amount represents 60% of the $45,739.65 in accordance with the
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ownership percentages of the partners of S&M prior to Mr. Massicot’s departure (40% each for
Massicot and Silvestri and 20% by Savoie).
With respect to the $45,739.65 deposited in the registry of the Court by Allstate, IT IS
ORDERED that JPM be awarded fees and costs in the amount of $18,295.86, plus a pro rata share
of accrued interest less a pro rata share of the fee assessed for the administration of the funds. This
amount represents 40% of the $45,739.65 in accordance with the ownership interests of the
members of S&M prior to Mr. Massicot’s departure (40% each for Massicot and Silvestri and 20%
by Savoie).
With respect to the $240,000 deposited into the registry of the Court by Travelers Property
Casualty Company of America (“Travelers”), IT IS ORDERED that 50% of that amount
($120,000) be apportioned in accordance with the ownership interests of the members of S&M
prior to Mr. Massicot’s departure (40% for each of Massicot and Silvestri and 20% for Savoie)
and that 50% be apportioned solely to JPM. Accordingly, JPM shall receive a total of 70% of
the $240,000 ($168,000) plus a pro rata share of accrued interest less a pro rata share of the
fee assessed for the administration of the funds, and S&M will receive a total of 30 % of the
$240,000 ($ 72,000) plus a pro rata share of accrued interest less a pro rata share of the fee
assessed for the administration of the funds.
The Court finds these apportionments appropriate, on a quantum meruit basis, considering
the various competing factors presented here: (1) JPM has not objected to the Magistrate Judge’s
recommended apportionment of the $45,739.65 deposited by Allstate; (2) the uncertainty of the
record relative to the exact date that the settlement with Allstate was reached; (3) that, as urged by
JPM, Mr. Jones’ widow and three children, who were substituted as plaintiffs at the end of May
31, 2016, never had a contract with S&M (only JPM) and, similarly, Travelers was not added as a
defendant until well after Mr. Jones’ death in May 31, 2016); (4) despite the late entry of Travelers
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as a named defendant, counsel were projecting an eventual settlement with Travelers of between
six figures and $1 million at least as of January 5, 2016; 1 (5) the debated settlement value of the
wrongful death claim versus the survival claim and the absence of a designated apportionment by
the parties as part of the Travelers settlement agreement); (6) the almost two years of time that the
members of S&M served as Mr. Jones’ counsel (from being retained on March 19, 2014, until
being discharged by Mr. Jones in early March 2016) versus that of JPM (from early March 2016
until the Travelers’ settlement in July 2016); (7) the services rendered by S&M paralegals and
other staff from the 2014 date of S&M’s retention through the beginning of March 2016; 2 (8) the
various costs advanced and guarantees made by S&M as late as early March 2016; 3 (9) Mr.
Massicot’s appearance as a member of S&M after January 1, 2016, in this and other actions; (10)
Mr. Massicot’s acknowledgement that fees generated by him were distributed amongst himself,
Mr. Silvestri, and Mr. Savoie in accordance with the pro rata shares utilized by the three as
members of S&M; (11) that it was Mr. Massicot on behalf of S&M (rather than Mr. Silvestri or
Mr. Savoie) who provided the vast majority of the legal services rendered on behalf of the plaintiffs
in this matter; 4 and (12) the hundreds of hours of work devoted by JPM (to the exclusion of other
work) following Mr. Jones’ March 2016 discharge of S&M in connection with finalizing the
Allstate settlement, taking approximately 20 depositions, hiring experts, reviewing thousands of

1
See Rec. Doc. 135-4 (email between Mr. Massicot and Mr. Silvestri); 135-2 (Excerpt from S&M “List of
Primary Cases” prepared for Gulf Coast Bank and Trust.
2
See, e.g., Rec. Doc. 135-3 (Affidavit of [S&M Paralegal/Office Manager] Laura Bass Chauvin”) (detailing
tasks completed at the direction of Mr. Massicot); see also Rec. Doc. 135-7 (email from Mr. Massicot to Ms.
Chauvin).
3
See, e.g., Rec. Doc. 135-3 (Affidavit of [S&M Paralegal/Office Manager] Laura Bass Chauvin”) (detailing
tasks completed at the direction of Mr. Massicot); see also Rec. Docs. 135-5 and 135-8 (reflecting sums advanced
by S&M for a physician telephone conference and imaging services for Mr. Jones).
4

See, e.g., Rec. Doc. 170-3 (Affidavit of John Paul Massicot).

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pages of expert reports and medical records, and negotiating a settlement of the
remaining survival action and wrongful death actions with Travelers approximately seven
weeks before the impending September 12, 2016 trial date and associated pre-trial deadlines. See
February 25, 2016 Order (Rec. Doc. 38).
IT IS FINALLY ORDERED that each party shall file their respective motions to
withdraw funds from the Court’s registry per Local Rule 67.3.
New Orleans, Louisiana, this 30th day March 2018.

_________________________________
UNITED STATES DISTRICT JUDGE

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