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Campbell v. Bozeman Investors of Duluth8/24/1998
Submitted on Briefs October 9, 1997.
1 Jeannie Rosseland Campbell (Campbell) brought an action in the District Court for the Eighteenth Judicial District, Gallatin County, to recover damages from Bozeman Investors of Duluth d/b/a Holiday Inn of Bozeman and Patrick Lund for personal injuries she sustained in a motor vehicle collision. Two of Campbell's attorneys in this action, Channing Hartelius (Hartelius) and Gregory Morgan (Morgan), filed a Notice of Lien claiming entitlement, from the proceeds of Campbell's claim, to payment of their costs and attorney fees as well as reimbursement for advances made to Campbell. The District Court found the lien to be valid and awarded judgment in favor of Hartelius and Morgan. From this judgment Campbell appeals; Hartelius and Morgan cross-appeal. We affirm.
2 The issues, as framed by this Court, are:
3 1. Whether the District Court erred in concluding that Hartelius and Morgan are entitled to attorney fees totaling $8800.
4 2. Whether this Court may consider the medical report of Dr. Peter Wendt.
5 3. Whether the District Court erred in failing to require that Campbell reveal the amount she received as settlement of her claim.
Factual and Procedural Background
6 On December 3, 1992, Campbell was seriously injured when her vehicle collided with a van operated by Patrick Lund (Lund). The van was owned by Lund's employer, Bozeman Investors of Duluth d/b/a the Holiday Inn of Bozeman (Bozeman Investors). Bozeman Investors' insurer paid Campbell for the damage to her vehicle as well as $4,000 to $5,000 of her medical bills.
7 In January 1994, Bozeman Investors' insurer made an unsolicited offer to settle Campbell's claim for the sum of $22,000, less the amounts already paid for medical care and for the damage to Campbell's vehicle. Campbell, who had not yet consulted a physician to determine the extent of the injuries to her back, rejected the offer. On April 29, 1994, Campbell filed a personal injury action against Lund and Bozeman Investors.
8 Campbell had retained Stephen Pohl (Pohl) to represent her in her personal injury action. However, when Campbell separated from her husband in November 1994, she perceived that there existed a possible conflict of interest with Pohl as Campbell had originally been referred to Pohl by Campbell's mother-in-law for whom Pohl had performed legal services.
9 Consequently, on December 8, 1994, Campbell entered into a contingent fee agreement with Hartelius and Morgan to render legal services in her suit against Bozeman Investors. The agreement provided that Campbell was to pay Hartelius and Morgan "33 — 1/3% OF ANY SETTLEMENT OBTAINED IN SAID CASE IF SAME IS SETTLED AT ANY TIME PRIOR TO INSTITUTING SUIT AND 40% OF ANY SETTLEMENT OBTAINED IN SAID CASE IF SAME IS SETTLED AT ANY TIME AFTER INSTITUTION OF SUIT." Pohl provided a complete copy of Campbell's file to Hartelius and Morgan and agreed to wait until the case was resolved to receive reimbursement for costs he expended on Campbell's behalf. Hence, on April 19, 1995, Hartelius and Morgan were substituted as counsel of record.
10 By this time, Campbell had quit her job and was attending physical therapy on a regular basis. She was also receiving treatment from a surgeon in Billings and was looking into going to a specialist in Minnesota to determine whether she required back surgery.
11 In April 1995, counsel for Bozeman Investors deposed Campbell. Although neither Hartelius nor Morgan met with Campbell in person before her deposition, Hartelius spoke with her on the phone and attended the de
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