Federal Insurance Company v. Catcher et al
Filing
143
OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; granting in part 135 Motion for Attorney Fees; denying 140 Motion for Attorney Fees (MLC, Chambers)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
FEDERAL INSURANCE COMPANY,
)
)
PLAINTIFF,
)
)
vs.
)
)
The Estate of ROBERT CATCHER;
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JAMIE LUKER, an Oklahoma resident; )
PAULA MATTEUZZI, an Oklahoma
)
resident; ROBERT VEST, an Oklahoma )
resident’ and CATHERINE and
)
DONALD MARTIN, Individually and as )
Husband and Wife, Oklahoma
)
residents,
)
)
DEFENDANTS.
)
CASE NO . 09-CV-41-TCK-FHM
OPINION AND ORDER
Defendants Catherine and Donald Martin’s Unopposed Motion for Leave to
Deposit Settlement funds into Court for Apportionment [Dkt. 131] is before the Court for
decision. Previously, the motion was partially granted allowing deposit of the settlement
funds into court, setting the issue of apportionment for hearing, and directing notice to
be given.
At the hearing held June 27, 2011, the following persons requested a portion of
the settlement funds: Catherine and Donald Martin; Richardson Richardson Boudreaux
Keesling PLLC; Herbert E. Elias, Jr., Jonathan M. Sutton; and Saint Francis
Hospital/Saint Francis Health System. All persons present consented to disposition of
the apportionment issue by the undersigned United States Magistrate Judge.
Herbert E. Elias, Jr.
Attorney Elias represented the Martins from July 2005 to October 2008 regarding
their claim which arose on June 11, 2005. Attorney Elias filed suit on behalf of the
Martins in state court. Attorney Elias did not assert claims against Federal Insurance
Company or its insured. Thus attorney Elias played no role in asserting or prosecuting
the claims that resulted in the settlement funds at issue. Therefore the undersigned
finds that attorney Elias is not entitled to any portion of the settlement funds.
The Application for Award of Attorney Fees by Herbert E. Elias, Jr., [Dkt. 140],
is denied.
Saint Francis Hospital / Saint Francis Health Systems
At the hearing, Saint Francis Hospital / Saint Francis Health Systems orally
presented a request for a $10,469.89 portion of the settlement funds based on a
hospital lien for $1,083.89 and an amendment to the lien for an additional $9,386.00.
The only objection to this request was based on the failure to file written notice
of claim prior to the hearing. In light of the notice provided by the filing of the liens with
the county clerk, the undersigned finds there was no prejudice to any party resulting
from the failure to file a notice of claim.
Saint Francis Hospital / Saint Francis Health Systems is hereby granted
$10,469.89 of the settlement funds.
Richardson Richardson Boudreaux Keesling, PLLC
At the hearing, Richardson Richardson Boudreaux Keesling PLLC orally
requested a $5,217.50 portion of the settlement funds for attorneys fees. No objection
was made to this request.
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Richardson Richardson Boudreaux Keesling PLLC is hereby granted $5,217.50
of the settlement funds.
Jonathan Sutton
Attorney Sutton represented the Martins in state and federal court. Attorney
Sutton brought claims on behalf of the Martins against Federal Insurance Company’s
insured and obtained an offer of settlement from Federal Insurance Company for
$70,000, the full amount of the settlement funds. Attorney Sutton requested forty (40)
percent of the settlement funds as attorney fees plus expenses of $828.55, pursuant
to his Contract for Representation with the Martins.
The Martins object to Attorney Sutton receiving any portion of the settlement
funds. The Martins contend Attorney Sutton failed to communicate the settlement offer
to them, failed to advise them of his withdrawal from the case, and was paid his fees
and expenses from a settlement in the state court case.
The evidence at the hearing concerning the communication between Attorney
Sutton and the Martins was not clear. Mrs. Martin contended that there was no
communication between her and Attorney Sutton after she left his employ on July 6,
2010. Mr. Martin contended that there was little communication with Attorney Sutton
but acknowledged some discussion at the state court. Attorney Sutton contended he
did communicate with the Martins but he did not provide any documentation of his
communications with the Martins.
Generally it is good practice for an attorney to document communications with
clients, especially communications regarding settlement and withdrawal from
representation. The Court finds the lack of written communication from Attorney Sutton
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to the Martins to be particularly troubling. Absent the actions taken by the Richardson
firm, it is possible the Martins’ claims would have been dismissed.
Because of the communication issue, Attorney Sutton’s withdrawal from the
case, and the fact that Attorney Sutton did not conclude the settlement, the Court finds
that Attorney Sutton is not entitled to the full forty (40) percent set forth in his contract
with the Martins. The Court concludes that, although Attorney Sutton should receive
attorney fees pursuant to the contract, the rate should be reduced to 33 percent.
Further, the attorneys fees to Attorney Sutton will be reduced by $5,217.50 to account
for the fees the Martins incurred to the Richardson firm. No expenses will be allowed
as Attorney Sutton did not establish that the expenses were not recovered in the state
case.
Attorney Sutton is hereby granted $17,882.50 of the settlement funds. ($70,000
x 33% = $23,100 - $5,217.50 = $17,882.50).
Catherine and Donald Martin
The Martins are granted the remaining settlement funds, $36,430.11. ($70,000
- $10,469.89 - $5,217.50 - $17,882.50 = $36,430.11).
Conclusion
Defendants Catherine and Donald Martin are GRANTED $36,430.11.
Richardson Richardson Boudreaux Keesling, PLLC is GRANTED $5,217.50.
Saint Francis Hospital / Saint Francis Health Systems is GRANTED $10,469.89.
Jonathan M. Sutton’s Claim to Attorneys Fees and Costs, [Dkt. 135], is
GRANTED IN PART in the amount of $17,882.50.
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The Application for Award of Attorney Fees by Herbert E. Elias, Jr., [Dkt. 140],
is DENIED.
SO ORDERED this 1st day of July, 2011.
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