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Miller v. Magnus

Court of Civil Appeals of Oklahoma, Division No. 2

October 1, 2019

Kelly R. MILLER, Plaintiff,
v.
Joseph A. MAGNUS, Lee R. Linsenmeyer, III, and Central Rural Electric Cooperative, Inc., an Oklahoma corporation, Defendants, Gregory Meier and Ken Privett, P.L.C., Appellants,
v.
Martin, Jean & Jackson, Appellee.

          Mandate Issued: 10/30/2019

         THIS OPINION HAS BEEN RELEASED FOR PUBLICATION BY ORDER OF THE COURT OF CIVIL APPEALS, Division 2

Page 441

          APPEAL FROM THE DISTRICT COURT OF PAYNE COUNTY, OKLAHOMA; HONORABLE PHILLIP CORLEY, TRIAL JUDGE

         Gregory G. Meier, MEIER & ASSOCIATES, Tulsa, Oklahoma, for Appellants

         Michael P. Martin, MARTIN, JEAN & JACKSON, Stillwater, Oklahoma, for Appellee

         OPINION

         P. THOMAS THORNBRUGH, JUDGE

         [¶1] The firm of Gregory Meier and Ken Privett, P.L.C. (Meier and Privett), appeal a decision by the district court apportioning 100 percent of a contingency fee to

Page 442

the firm of Martin, Jean & Jackson (MJ&J). On review, we find the district court acted within its discretion.

          BACKGROUND

         [¶2] The district court made substantial findings of fact that we will use as the basis for this summary. On or about June 15, 2014, Plaintiff Miller was involved in a motor vehicle collision. Miller was injured by a truck driven by Joseph Magnus. Magnus was a 17 year-old high school student at the time, and was driving a truck pulling a trailer with a backhoe. Magnus swerved to avoid a truck owned by Central Rural Electric Cooperative (CREC) which was stopped in the roadway. In doing so, Magnus’s truck crossed the centerline and collided with Miller’s vehicle. On June 18, 2014, Miller entered into a contract with MJ&J to represent his interest in claims against the potential Defendants arising out of the collision. The contract provided MJ&J would be compensated under a 33 1/3 percent contingent fee on the gross amount recovered if this case was resolved before a lawsuit was filed, or 40 percent of the gross amount recovered if suit was filed.

         [¶3] Shortly after being retained, MJ&J initiated the claims process as to Magnus’s parents’ insurance and Miller’s s own insurer. MJ&J settled the property damage claim with the Magnuses’ insurer. MJ&J did not charge a fee for settling the property damage claim. MJ&J submitted Miller’s medical bills to his own insurer and obtained the medical payment of policy limits of $100,000.00, which was disbursed to Plaintiff. MJ&J negotiated with Miller’s health insurance provider to waive its subrogation interest of $225,883 as to the medical payments coverage. No fee was charged to Miller for this work.

         [¶4] MJ&J obtained a policy limit offer of $250,000.00 from the Magnuses’ insurer.[1] Miller did not wish to accept the offer at that time, and requested MJ&J to investigate whether Defendant Magnus had any collectable assets to pursue over the $250,000.00 policy limits. MJ&J arranged a recorded statement of Defendant Magnus and hired another investigator to investigate potential claims against the CREC driver, Lee Linsenmeyer, Ill. and CREC. On January 21, 2015, MJ&J received a letter from Defendant Magnus’s counsel reiterating the policy limit offer.

         [¶5] On February 11, 2015, Michael Martin of MJ&J had a meeting with Miller to discuss case status and strategy. Miller stated that he did not want to file a lawsuit at that time. On March 25, 2015, Martin sent Miller a letter asking Miller if he was ready to proceed on the potential claim against CREC. On April 11, 2015, Martin sent Miller a second letter asking Miller to call and discuss the best way to proceed on his case.

         [¶6] On April 23, 2015, Miller entered a second attorney client agreement and fee agreement with Meier and Privett,[2] but did not inform MJ&J until they received a letter from Miller terminating MJ&J as his counsel on May 7, 2015. On May 15, 2015, Gregory Meier also advised MJ&J that he had been retained by Plaintiff to continue his claims against Defendants. On May 19, 2015, MJ&J notified ...


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