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Jones v. Allstate Insurance Co.

United States District Court, E.D. Louisiana

July 5, 2017


         SECTION “N” (3)



         Presently before the Court are several motions relative to recovery of attorney fees. See Rec. Docs. 68, 119, 134, 144 and 150.


         Following settlement of the plaintiffs' claims against the defendants, and the cross-claim between Defendants Allstate Insurance Company and Travelers Property Casualty Company of America, only the attorney fees dispute between Intervenor Silvestri& Massicot, LLC (S&M) and the Law Offices of John Paul Massicot, LLC ("JPM") remains unresolved in this matter. Specifically, S&M and JPM disagree regarding the proper division amongst themselves amounts of the attorney fees deposited into the registry of the Court by Allstate and Travelers.

         The now settled claims arose from a motor vehicle accident that occurred on March 17, 2014, when vehicles driven by the now deceased original plaintiff, Cyril Jones, and Defendant Horace Spencer, collided. Shortly after the accident, Attorney John Paul Massicot, in his capacity as a member of S&M, commenced the instant action, asserting a personal injury claim, on behalf of Mr. Jones. On or around March 7, 2016, however, Mr. Massicot formally withdrew from his membership in S&M, and Mr. Jones terminated S&M's services as its counsel of record. Thereafter, on March 17, 2016, JPM was substituted as Mr. Jones' counsel of record. Having withdrawn as counsel of record, S&M filed a motion on March 29, 2016, seeking to intervene in the action for the purpose of asserting its entitlement to any attorney fees payable to plaintiffs' counsel, relative to the claim against Allstate, upon resolution of the lawsuit.

         On March 24, 2016, Mr. Jones died. Shortly thereafter, by motion granted on June 7, 2016, Mr. Jones' surviving spouse and three major children (the "Jones plaintiffs"), as the survivors designated by Louisiana Civil Code article 2315.2, were substituted as plaintiffs relative to the personal injury claims Mr. Jones had asserted. See Rec. Doc. 64.[1] At that time, the Jones plaintiffs also formally added Travelers as a defendant, and asserted wrongful death claims, pursuant to Article 2315.2 of the Louisiana Civil Code, against the defendants. Id.

         On or around May 26, 2016, Allstate deposited $45, 739.65 into the Court's registry pending a final determination of to whom the monies were payable, in connection with the plaintiffs' settlement with Allstate as attorney's fees, costs, and/or reimbursable expenses. Although some disagreement exists with respect to the effective date of the Allstate settlement, the settlement agreement between it and the Jones plaintiffs is dated June 2, 2016. On October 6, 2016, Travelers deposited $240, 00.00 for the same purpose following execution of its settlement agreement with the Jones plaintiffs on September 8, 2016. See Rec. Docs. 120 and 132.


         As previously stated, now before the Court are motions concerning S&M's and JPM's competing claims to the sums deposited into the registry of the Court by Defendants Allstate and Travelers as payment for plaintiffs' attorney fees. Having carefully reviewed the opposing and supporting memoranda, the record in this matter, and applicable law, the Court rules on the motions as follows:

         (1) IT IS ORDERED that the "Motion of Silvestri & Massicot, LLC to Withdraw Funds in the Registry of the Court" (Rec. Doc. 68), addressing the $45, 739.65 deposited by Allstate, is DENIED WITHOUT PREJUDICE. Because it is not apparent to the Court that the settlement with Allstate was reached, and effective, prior to Mr. Jones' March 2016 discharge of S&M as his counsel of record in this matter, S&M is not entitled to disbursement of the entirety of the attorney fees and costs arising from the Allstate settlement. Rather, JPM, as successive counsel of record for Mr. Jones, and then for the Jones plaintiffs, is entitled to a portion of that fee.

         (2) IT IS FURTHER ORDERED that the Jones plaintiffs' "Motion to Dismiss Intervention and to Deny the Motion to Intervene filed by Silvestri & Massicot, LLC" (Rec. Doc. 119) is DENIED. Subsequent to the Jones plaintiffs' motion being filed, the Court granted S&M's motion to intervene relative to the Traveler's settlement. See Rec. Docs. 130 and 131. Thus, the Jones plaintiffs' denial request is moot.

         Nor will the Court dismiss S&M's interventions simply because Mr. Jones died prior to the Allstate and Travelers settlements. Although a contract for legal services, as a contract of mandate, terminates by operation of law upon the death of the principal, Mr. Jones' death did not automatically deprive S&M of any entitlement to a fee award based on those settlements. Rather, the impact of Mr. Jones' death is that the amounts of the Allstate and Travelers fee awards to which S&M is entitled are determined based on quantum meruit principles." See Kinsey v. Dixon, 467 So.2d 862, at 864-65 (La. Ct. App. 2 Cir. 1985) ("A contract for legal services is a contract of mandate which is terminated by operation of law upon the death of the principal or mandatary. [] Since the contract is terminated, the cause of action is in quantum meruit rather than in enforcement of the contract."). "The phrase, quantum meruit, means as much as he deserved." Id. at 865 (quoting Smith v. Westside Transit Lines, Inc., 313 So.2d 371, 378 (La.App. 4th Cir.), writ denied, 318 So.2d 43 (La. 1975)).

         Furthermore, despite the quantum meruit basis of the award, the ultimate amount of fees awarded is not necessarily precluded from being the same maximum amount as the fee provided for in the now terminated contract. Id. "On the contrary, 'the discharged attorney . . . may enforce the privilege accorded him by R.S. 37:218 and recover whatever fee he has earned which is not ...

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