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Barrett v. Freise11/24/2003
After Jeffrey Barrett and his limited guardian, John Barrett, Jr., sued Eric Freise and his law firm for legal malpractice, breach of fiduciary duty, negligent misrepresentation, and violations of the Consumer Protection Act, as well as for disgorgement of legal fees paid and costs reimbursed from the settlement of Jeffrey Barrett's underinsured motorist claim, Freise counter-sued for recovery of unpaid legal fees and costs pursuant to the parties' contingency fee agreement that was executed at the outset of the representation. The trial court dismissed all of the Barretts' liability and disgorgement claims on summary judgment. Following a trial on Freise's counterclaim, the court awarded Freise and his law firm a money judgment against the proceeds of Jeffrey's recovery from American States Insurance Company, in the sum of $146,666.67 plus court costs and prejudgment interest. The Barretts appeal the dismissal of their claims and the money judgment in favor of Freise. We affirm.
FACTS
The Motor Vehicle Accident
On October 11, 1995, a serious motor vehicle accident left Jeffrey Barrett with devastating physical and mental injuries. Ned Maher, the at-fault driver, had been drinking before the accident. Jeff was airlifted to Harborview Medical Hospital, where he was treated for two weeks. He then was treated for two months at Providence Hospital in Everett.
Jeff's automobile insurance policy with Pemco provided policy limits of $100,000 in underinsured motorist (UIM) coverage for bodily injuries, $10,000 in Personal Injury Protection (PIP) medical benefits, and some wage loss coverage. The drunk driver had policy limits of $500,000 in liability coverage with American States Insurance Company. The Lucky 7 Saloon, where Maher had been drinking before the crash, carried a liability insurance policy with Crusader Insurance having policy limits of $1,000,000. Jeff also carried medical insurance with King County Blue Shield through his employment at The Boeing Company.
JoLynn Barrett Retains Freise's Law Firm to Pursue Personal Injury Claims Jeff's wife, JoLynn, contacted Eric Freise's law office on October 24, 1995. On November 30, 1995, she spoke with David Mulholland, then an associate in Freise's firm. Mulholland prepared a durable power of attorney and a fee agreement.
On December 1, 1995, Freise and Mulholland met with JoLynn and Jeff at Providence Hospital. JoLynn, on behalf of her husband, her children, and herself, executed the fee agreement retaining Freise to pursue the family's personal injury claims. The fee agreement allowed for an election between an hourly rate of $150 for attorney time or a one-third contingency fee. JoLynn elected the contingency fee by writing into a margin of the agreement: 'I {prefer} the 331/3 contingency /s/ JoLynn Barrett 12-1-95.' Clerk's Papers at 88. Freise and Mulholland left the unsigned durable power of attorney with JoLynn.
On December 27, 1995, Jeff was transferred to the Delta Rehabilitation Center. The head nurse there advised JoLynn to obtain a durable power of attorney so that she could arrange for Jeff's care. Jeff signed one that day, before a notary public who worked at the Center.
Once the contingency fee agreement was signed, Freise's office began to obtain medical records, investigate the facts of the case, and notify insurers about the claims. On February 5, 1996, Freise, his legal assistant Cindy McWilliams, and Melonie Heaton, a registered nurse and case manager with expertise in head injury cases, visited the Delta Rehabilitation Center and met with Jeff and JoLynn. Because Heaton advised that Jeff was in need of more intensive therapy than was av
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