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Block v. Bernard11/4/2005
This appeal involves an action by an attorney to recover an unpaid fee owed by former clients in a personal injury action from attorneys representing an adverse party in that underlying action. The plaintiff-appellant, Jerald P. Block, seeks the reversal of the trial court's judgment sustaining a peremptory exception of no cause of action in favor of the defendants-appellees, Stephen N. Elliott and the law firm of Bernard, Cassisa, Elliott & Davis. We affirm the trial court's judgment for the following reasons.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On March 17, 1993, Keith J. Manning was seriously injured in a motor vehicle accident. In December 1993, he and his wife, Susan P. Manning, retained an attorney, Jerald P. Block, to represent them in the assertion of personal injury claims arising from the accident. Mr. Block filed suit for damages on behalf of the Mannings on January 21, 1994. The Mannings later executed a written contingent fee agreement with Mr. Block on January 31, 1997 ("effective" that date), providing for a one-third (33 1/3 %) contingent fee, in addition to reimbursement of litigation expenses and costs.
During the course of Mr. Block's representation of the Mannings, he delegated certain aspects of the handling of the case to Keith J. Labat, an associate attorney employed by him. Mr. Labat left Mr. Block's employment in April 1997. The Mannings subsequently decided to retain Mr. Labat to represent their interests, but offered to continue to be represented by Mr. Block as co-counsel. Mr. Block declined the offer, and was notified that he had been discharged by the Mannings on November 29, 1997. He properly recorded his written contingent fee agreement with the trial court's clerk of court on December 22, 1997, and also filed a petition of intervention in the Mannings' personal injury action the same day.
The Mannings' claims against the tortfeasors and their liability insurer were ultimately settled for the latter's liability coverage limits of $100,000.00, and the Mannings settled with their own underinsured motorists insurer for its applicable coverage limits of $10,000.00. The primary focus of the litigation, however, was the potential liability of Sentry Insurance A Mutual Company (Sentry), which provided underinsured motorists coverage under primary and umbrella policies issued to Mr. Manning's employer.
Sentry was represented in the underlying action by the defendant attorneys herein, Stephen N. Elliott and the firm of Bernard, Cassisa, Elliott & Davis (the defendant attorneys). Sentry eventually made an unconditional tender of $350,000.000 in December 1997 as part of a broader settlement agreement, and thereafter paid another $1,500,000.00 in compromise of the Mannings' claim against it.
On December 14, 1999, Mr. Block sent a letter by mail and facsimile telecopier to Mr. Elliott, confirming his understanding that the underlying action had been settled and that his name would be included as a payee on the settlement check. In the meantime, Mr. Labat had advised his clients to refuse to agree to the inclusion of Mr. Block as a payee on the check, and advised Mr. Elliott by letter dated December 16, 1999 that the Mannings would not agree to the proposed compromise if Mr. Block's name was included on the check. On December 20, 1999, Mr. Elliott advised Mr. Block via mail and facsimile telecopier that he and his client "have been informed by Keith Labat that the Mannings will not settle this case if your name is included on the check," and that the check would be issued payable to Mr. Labat and the Mannings. Mr. Elliott also conveyed Mr. Labat's supposed agreement to "take care of all of [Mr. Block's] cos
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