 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
PST Vans12/28/1999
oid the unjust enrichment of the more passive plaintiff or attorney. Stout, at *4; Wheeler, at *4-*5 (both cases citing Hobson, 801 S.W.2d at 809).
In Stout, Jeffrey Lee Stout died, leaving his divorced parents as his next of kin. His mother brought a wrongful death action and employed the law firm of Neal and Harwell on a one-third contingent fee basis. Stout's father hired his own attorney. Neal and Harwell negotiated a $560,000 settlement, and the father and his attorney objected to Neal and Harwell's expenses and fees being paid out of the entire fund. The trial court found that " he services rendered by Neal & Harwell to date have inured to the benefit of the entire estate and both potential beneficiaries" and ordered Neal and Harwell's one- third fee to be paid out of the entire fund. Stout, at *3. We affirmed, holding that " ecause Neal & Harwell did the lion's share of the work, Neal & Harwell was properly paid from estate funds before the funds were divided between the beneficiaries." Id., at *4.
The facts in Wheeler are similar to those in Stout. The adult son of divorced parents died, leaving his parents as his only next of kin. The mother brought a wrongful death action and employed counsel on a one-third contingent fee basis. The father hired his own counsel to pursue the same wrongful death case, also on a one-third contingent fee agreement. The trial court found that the mother's counsel had performed two-thirds of the work involved in prosecuting the case while the father's counsel had performed one-third of the work involved. The trial court then awarded one-third of the entire fund as attorneys' fees and ordered that this fee be split two-thirds to the mother's counsel and one-third to the father's counsel. On appeal, we noted that the trial judge had found as a fact that the mother's counsel had done the "lion's share" of the work and that the record "certainly supports such a finding." Wheeler, at *3. We concluded that the remedy fashioned by the trial court "not only appears fair and equitable to this Court, but is well within the discretion vested in the Trial Judge." Id. at *5.
The Daughter relies on the case of Travelers Ins. Co. v. Williams, 541 S.W.2d 587 (Tenn. 1976). Williams involves a dispute between an insured and his insurer as to whether the insured's attorney was entitled to his one-third contingent fee out of the share of a recovery against a tortfeasor that represented the insurer's subrogation interest. The insurer's right of subrogation arose out of medical payments made to the insured for the benefit of his minor child. In Williams, the insurance company advised the insured that it would "handle own subrogation." Id. at 588. It advised the insured that it did not want the insured to protect its subrogation rights. Id. at 590. The Supreme Court in Williams concluded
that the facts of this case do not entitle the insured's attorney to receive any fee from the insurer with respect to the subrogation claim; he acted as a volunteer. Id. at 591.
We do not believe that Williams and its progeny are applicable to this case. Williams involves subrogation; the instant case involves the pursuit of a wrongful death claim by the individual to whom the right to pursue the claim is expressly granted by statute. See T.C.A. ยง 20-5-110(a). In our judgment, the common fund doctrine as discussed in Stout and Wheeler is the doctrine applicable to the case at bar.
VII.
As previously discussed, this matter was before the trial court on diametrically-opposed positions with respect to the contribution of the Daughter and her counsel to the securing of the $153,000 judgment. In order to apply the appl
Page 1 2 3 4 5 6 Tennessee Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|