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Miller v. Magnus

Court of Appeals of Oklahoma, Division II

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

          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

          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 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 counsel for Magnus, Miller's new counsel, and the insurance claim representative that MJ&J claimed an attorney's lien.

         ¶7 On July 30, 2015, Meier and Privett filed a petition for negligence against Defendants Magnus, Linsenmeyer, and CREC. [3] Meier and Privett negotiated a compromise resolution of Aetna's health insurance lien claim from $400, 000 down to $85, 000 on behalf of Miller. They also achieved a release of hospital lien from St. Francis Health System and a release by the Warren Clinic. Miller then settled his case against Defendant Magnus for the previous policy limits offer of $250, 000.00, and Magnus was subsequently dismissed from the lawsuit. [4] On January 22, 2016, MJ&J filed an attorney's lien with the Payne County clerk and filed a Notice of Lien.

         ¶8 On January 12, 2017, Miller filed a motion to strike and invalidate MJ&J's January 26, 2016, notice of attorney's lien. Through a series of procedural detours, this eventually evolved into a hearing on the allocation of attorney's fees generated by the $250, 000 settlement with the Magnuses' insurer. MJ&J claimed that they were entitled to $83, 333.33 in contingency fees (a 33 1/3 percent share of the $250, 000) plus some expenses. Meier and Privett also claimed that they were entitled to $83, 333.33 in contingency fees, and that MJ&J were entitled only to their expenses.

         ¶9 In a written order dated August 28, 2017, the district court found that MJ&J's lien was valid. It also found:

... that MJ&J were discharged by Plaintiff Miller without cause. This court finds the amount settled by Plaintiff with Defendant Magnus was the same amount negotiated by MJ&J, the $250, 000.00 policy limit. Based on Martin v. Buckman [ 1994 OK CIV APP 84');">1994 OK CIV APP 84 ], the court finds that ...

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