Bass v. Coltelli

• Decision Date: 12 December 1994
• Docket Number: No. 22304,22304
• Citation: 192 W.Va. 516,453 S.E.2d 350
• Parties: Mabel BASS, Plaintiff Below, v. Laura COLTELLI and Douglas Bass, Defendants Below.
• Court: West Virginia Supreme Court

Page 350

453 S.E.2d 350

192 W.Va. 516

Mabel BASS, Plaintiff Below, v. Laura COLTELLI and Douglas Bass, Defendants Below.

No. 22304.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 4, 1994.

Decided Dec. 12, 1994.

Syllabus by the Court

1. "This Court will make an independent determination of whether the matters brought before it lie within its jurisdiction." Syllabus point 1, State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 (1992).

2. " 'The question of certifiability of decisions of a lower court to this Court is one which goes to the jurisdiction of this Court.' Syllabus Point 2, State v. Brown, 159 W.Va. 438, 223 S.E.2d 193 (1976)." Syllabus point 2, State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 (1992).

3. Questions subject to certification pursuant to W.Va.Code, 58-5-2 (1967), are limited to any question arising upon the sufficiency of a summons or return of service, upon a challenge of the sufficiency of a pleading or the venue of the circuit court, upon the sufficiency of a motion for summary judgment where such motion is denied, or a motion for judgment on the pleadings, upon the jurisdiction of the circuit court of a person or subject matter, or upon failure to join an indispensable party.

4. "Certification is a procedure which is available only to examine the facial sufficiency of a pleading and does not lie to test the sufficiency of a pleading when measured against underlying facts." Syllabus point 2, Toler v. Shelton, 159 W.Va. 476, 223 S.E.2d 429 (1976).

5. West Virginia Code, 58-5-2 (1967), allows for certification of a question arising from a denial of a motion for summary judgment. However, such certification will not be accepted unless there is a sufficiently precise and undisputed factual record on which the legal issues can be determined. Moreover, such legal issues must substantially control the case.

Lawrence M. Schultz, D. Michael Burke, Askin, Burke & Schultz, Martinsburg, and Daniel R. James, Barr & James, Keyser, for plaintiff.

Richard L. Douglas, Kenneth E. Webb, Jr., Bowles, Rice, McDavid, Graff & Love, Charleston, and Cynthia S. Gustke, Busch & Talbott, L.C., Elkins, for defendants.

MILLER, Justice: ¹

In this certified case from the Circuit Court of Berkeley County, West Virginia, we are asked to address several questions which relate to a mother's right to sue her son's attorney. The certified questions, and the trial court's answers to them, are as follows:

I. Does the mother of an adult son have standing to sue her son's attorney for charging a contingent fee on medical payments for injuries incurred when the son was a minor, when the mother has received full payment for the medical expenses she incurred and the son has no complaint with his attorney?

Answer of the Court: Not if the son is no longer a minor at the time the mother would sue, and the son has an independent contractual relationship with the attorney.

II. Does the mother and next friend of a minor child injured in an auto accident have:

a) the right to obtain and personally keep medical payments coverage for the medical expenses she incurred for the treatment of her son's injury when such expenses were paid by a collateral source?

Answer of the Court: Only if that collateral source had asserted subrogation rights against the mother for that payment during the son's minority.

b) an individual claim to that portion of the liability and underinsured motorist settlement proceeds applicable to the medical expenses?

Answer of the Court: No, even if she had uncompensated out of pocket expenses not paid by a collateral source, unless the mother had asserted a right of subrogation.

III. Is it "unconscionable" for an attorney to charge a contingent fee for obtaining medical payment benefits, under the circumstances in this case?

Answer of the Court: No.

IV. Where an attorney collects first-party, no fault medical payments funds for an injured client, is she entitled to a contingent fee where:

a) The insurance company pays promptly and without contesting coverage?

Answer of the Court: Yes, if within the scope of her contract of employment.

b) The insurance company contests coverage then later, without suit being filed, concedes coverage and pays in full?

Answer of the Court: Yes, if within the scope of her contract of employment.

V. Does the plaintiff, Defendant Bass' mother, have any legal right to hold funds which she obtained as next friend on behalf of her son in settlement for his injuries prior to his eighteenth birthday as a set-off for claims she has asserted in this litigation?

Answer of the Court: Only to the extent that those funds would be needed to pay subrogation claims asserted against her as legal representation/next friend during the minority of her son, or to the extent those funds would satisfy validly asserted subrogation rights of the mother.

I.

On September 30, 1990, Douglas Bass was a guest passenger in a car driven by Darren Weakley, when that car was struck by a vehicle negligently driven by Cary Dunham. Shortly thereafter, on October 16, 1990, Mrs. Mabel Bass hired an attorney, Ms. Laura Coltelli, to represent both her and her son, who was a minor when he was injured in the accident. Mrs. Bass signed an "Authority to Represent" form which indicated that she was retaining Ms. Coltelli as counsel to represent her in her claim against Cary Dunham, the driver at fault in the accident, "or whoever is liable for my son, Douglas Bass' injuries or damages...." The agreement specified that Mrs. Bass would pay Ms. Coltelli one-third of the proceeds of any recovery Ms. Coltelli obtained as compensation for her services.

Several sources of insurance coverage were involved in this case. The Weakley vehicle was insured by State Farm Insurance Company. This policy provided medical payment benefits limited to $25,000.00. State Farm acknowledged its liability under this policy, and, as medical bills were sent by Ms. Coltelli, State Farm made payments until the $25,000.00 limit was reached. Ms. Coltelli deducted her one-third contingent fee from each check and remitted the net amount to Mrs. Bass. Mrs. Bass was aware of this procedure, and initially she made no complaint. However, the one-third fee that Ms. Coltelli charged upon receipt of this medical payment coverage is at the center of the controversy in this case.

The parties agree that many of Douglas Bass' medical bills were paid by medical insurance provided by Mrs. Bass' employer. The exact amount of the payments provided under this coverage is not contained in the record. The parties acknowledge that there may be an inchoate right of subrogation arising from the payments made by the medical insurance carrier, but this matter is also not developed factually.

Another source for reimbursement of medical expenses was a medical payment provision in Mrs. Bass' automobile insurance policy with State Farm. Although State Farm initially declined to stack medical payment coverages, Ms. Coltelli eventually negotiated the payment of over $21,000.00. Because of the delay in obtaining these funds, they were paid directly to Douglas Bass in August, 1992, after he reached the age of majority.

In August, 1991, the liability portion of Douglas Bass' claim was settled without the necessity of filing suit, when Mr. Dunham's liability carrier agreed to a $200,000.00 settlement negotiated by Ms. Coltelli. Mrs. Bass also had underinsured motorist coverage with State Farm, which provided her son with a $60,000.00 settlement. Douglas Bass turned eighteen years old on June 18, 1991, so a summary proceeding was unnecessary.

At some point after the $200,000.00 liability settlement in August, 1991, the relationship between Mrs. Bass and her son became strained. Because she perceived that it would be a conflict of interest to represent both of them, Ms. Coltelli ceased representing Mrs. Bass, who was subsequently left out of a new contingent fee agreement that was drafted between Douglas Bass and Ms. Coltelli.

In April, 1992, Mrs. Bass sought new counsel of her own. This attorney demanded that Ms. Coltelli refund the one-third contingent fee she took from the $25,000.00 medical payment benefit on the Weakley vehicle. At the suggestion of ethics counsel for the West Virginia State Bar, Ms. Coltelli reduced her fee from one-third to one-fourth of the first $25,000.00 medical payment benefit. She paid this refund directly to Douglas Bass. However, the matter was not resolved, and on January 15, 1993, Mrs. Bass filed this suit against Ms. Coltelli and Douglas Bass. An amended complaint was filed on April 15, 1993. On November 9, 1993, the circuit court granted the defendants' motion for summary judgment. However, the court later rescinded its order and certified the foregoing questions to this Court.

II.

Neither party questions whether the issues raised are subject to certification under our certified question statute, W.Va.Code, 58-5-2 (1967). ² This certification is not unlike the certified question in State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 (1992), where we said, in syllabus points 1 and 2:

1. This Court will make an independent determination of whether the matters brought before it lie within its jurisdiction.

2. "The question of certifiability of decisions of a lower court to this Court is one which goes to the jurisdiction of this Court." Syllabus Point 2, State v. Brown, 159 W.Va. 438, 223 S.E.2d 193 (1976).

In Lewis, both parties had joined in the certification. The certification was made in a criminal case, and we held that W.Va.Code, 58-5-2, was confined to civil cases.

The 1967 revision to W.Va.Code, 58-5-2, broadened the statutory grounds for certifying questions to this Court. Prior to 1967, W.Va.Code, 58-5-2, permitted certification only for questions related to the sufficiency of a summons or return of service, or challenge to the sufficiency of a pleading. The 1967 revision expanded the questions subject to certification...