Crout v. Haverfield Int'l, Inc.

• Decision Date: 14 December 2018
• Docket Number: 6:14-CV-06520 EAW
• Parties: Brenda CROUT, Temporary Administrator of the Estate of Dale R. Crout, Decedent, Plaintiff, v. HAVERFIELD INTERNATIONAL, INC., doing business as Haverfield Aviation, Inc., Defendant.
• Court: U.S. District Court — Western District of New York

348 F.Supp.3d 219

Brenda CROUT, Temporary Administrator of the Estate of Dale R. Crout, Decedent, Plaintiff,

v.HAVERFIELD INTERNATIONAL, INC., doing business as Haverfield Aviation, Inc., Defendant.

6:14-CV-06520 EAW

United States District Court, W.D. New York.

Signed December 14, 2018

Angelo G. Faraci, John A. Falk, Kathryn Lee Bruns, Lesley Ellen Niebel, Matthew F. Belanger, Stephen G. Schwarz, Faraci Lange LLP, Rochester, NY, for Plaintiff.

David H. Fromm, Fred G. Wexler, Robert J. Brown, Brown Gavalas & Fromm LLP, New York, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Plaintiff Brenda Crout ("Plaintiff") filed this action on January 22, 2014, in the Supreme Court of New York, Kings County, arising from the death of her husband, Dale R. Crout ("the decedent"), in a tragic helicopter accident on November 15, 2012. (Dkt. 1). Defendant Haverfield International, Inc. ("Defendant") removed the action to the Eastern District of New York on April 7, 2014. (Id. at 1-2). The case was transferred to this Court by Stipulation and Order on September 9, 2014. (Dkt. 16).

Presently before the Court is Plaintiff's motion to approve the settlement of this action, in accordance with Local Rule of Civil Procedure 41(a)(2). (Dkt. 156). Plaintiff also seeks resolution of a fee dispute regarding her former counsel, Cellino & Barnes, P.C. ("Cellino & Barnes"). (Id. ). For the reasons set forth below, the Court approves the proposed settlement and directs that Cellino & Barnes be paid $7,500 in attorneys' fees.

FACTUAL BACKGROUND

On the morning of November 15, 2012, shortly before noon, a helicopter owned by Defendant and carrying the decedent took off on the second of three days of planned flights to inspect power lines in the vicinity of Corning, New York. (Dkt. 65 at 2). About 20 minutes into the flight, the vertical strut on the helicopter's right landing skid struck a wire. (Id. at 4). The impact caused the helicopter to crash, killing both the pilot and the decedent. (Id. ). At the time of his death, the decedent was 41 years old, and left the following next of kin: Plaintiff; son Kendale Crout, then 13 years old; daughter Courtney Flahive, then 21 years old; and daughter Erica Westervelt, then 24 years old. (Dkt. 157 at ¶¶ 5-6).

Less than a week later, on November 21, 2012, Plaintiff contacted Cellino & Barnes. (Dkt. 164 at ¶ 4). Attorney Brian Goldstein, who manages aviation-related cases for the firm, thereafter spoke with Plaintiff and obtained background information regarding the helicopter crash, as well as discussed various potential legal issues that could arise in any litigation against Defendant. (Id. at ¶¶ 4-19). Mr. Goldstein recommended an estate attorney to Plaintiff, and caused initial intake materials to be mailed to her. (Id. at ¶¶ 21-22). Cellino & Barnes also conducted some "initial investigation" related to the helicopter crash. (Id. at ¶¶ 23-26).

On November 25, 2012, Plaintiff retained Cellino & Barnes to represent both her and her husband's estate in any action for damages arising out of the helicopter crash that killed the decedent. (Dkt. 157 at ¶ 7). Plaintiff sent Cellino & Barnes additional information regarding herself, the decedent, and their family, all of which was reviewed. (Dkt. 164 at ¶ 28). Mr. Goldstein also had a conversation with the adjuster assigned to the matter by Defendant's insurers on November 26, 2012. (Id. at ¶¶ 32-34). Cellino & Barnes further conducted additional internet searches and preliminary research related to the helicopter crash, as well as exchanged emails with Plaintiff. (Id. at ¶¶ 36-44).

On December 3, 2012, Mr. Goldstein spoke with Plaintiff and was advised that she had decided to retain an estate attorney who had assisted with the decedent's father's and grandfather's estates. (Id. at ¶ 45). However, Plaintiff subsequently elected to use the attorney recommended by Cellino & Barnes when one of her stepdaughters refused to sign a waiver to have Plaintiff voluntarily appointed as the estate representative. (Id. at ¶ 48). Cellino & Barnes drafted initial discovery requests, as well as a letter to the adjuster assigned to the matter by Defendant's insurers. (Id. at ¶¶ 51, 53-55). Plaintiff never met anyone associated with the Cellino & Barnes firm during its involvement in her case, and her primary contact was a paralegal with the firm. (Dkt. 157 at ¶ 7).

Shortly after retaining Cellino & Barnes, Plaintiff learned that a lifelong friend, Norman R. Colon, Esq., specialized in personal injury and wrongful death litigation, and decided that she wished to be represented by Mr. Colon. (Dkt. 157 at ¶ 8). Mr. Colon informed Plaintiff that he would associate himself with Faraci Lange LLP ("Faraci Lange") in connection with the matter, and Plaintiff consented to that association. (Id. ). Plaintiff retained Mr. Colon and Faraci Lange on December 19, 2012. (Id. ).

At Plaintiff's direction, Faraci Lange sent a letter dated December 21, 2012, to Mr. Goldstein, informing him that Mr. Colon and Faraci Lange had been retained by Plaintiff, that Plaintiff was discharging Cellino & Barnes, and that Plaintiff requested that Cellino & Barnes provide "whatever papers, records and information you've acquired to [Faraci Lange], along with your list of disbursements expended, itemized statement of time and your claimed hourly rate so that the time expended and disbursements incurred may be promptly paid to you." (Dkt. 157-5). On December 27, 2012, Stephen E. Barnes, Esq., sent a reply letter to Faraci Lange stating that the firm "elect[ed] to be compensated on a contingent fee basis based on the proportionate share of the work performed by each firm on the whole case" and that it "further elect[ed] that the fee division ... be determined at the conclusion of the case." (Dkt. 157-8). Mr. Barnes also stated that the firm had incurred no disbursements. (Id. ).

On December 31, 2012, Faraci Lange sent a letter with Plaintiff's affidavit to Cellino & Barnes in which, among other things, Plaintiff indicated that she was directing that Cellino & Barnes provide "an itemized statement of time expended by Cellino & Barnes and its hourly rate so that the value of your services together with disbursements expended can be promptly paid." (Dkt. 157-9 at 2). On January 13, 2013, Mr. Barnes sent a letter to Faraci Lange stating again that the firm "elected to be compensated on a contingency basis after the case is resolved" and that it "decline[d] to be compensated on an hourly basis[.]" (Dkt. 157-10). On February 12, 2013, Faraci Lange sent a letter to Cellino & Barnes reiterating that Plaintiff was electing to compensate Cellino & Barnes on a quantum meruit basis and that she did not consent to a contingent fee payment to Cellino & Barnes. (Dkt. 157-11).

Beginning August 28, 2013, Plaintiff has acted as "temporary administrator or limited administrator [of the decedent's estate] for purposes of maintaining to their conclusion the actions for the wrongful death and the pain and suffering prior to death of the decedent against [Defendant]." (Dkt. 158 at ¶ 5). The instant action was commenced by Plaintiff on behalf of the decedent's estate over one year after retaining the Faraci Lange firm, on January 22, 2014. (Dkt. 1). Extensive litigation followed, including lengthy discovery and the filing of cross-motions for partial summary judgment (Dkt. 36; Dkt. 42), which were resolved by the Court on September 7, 2017 (Dkt. 65). The parties also participated in multiple mediations (see Dkt. 158 at ¶ 18), in addition to preparing the case for trial (id. ). The case was scheduled to proceed to trial on September 5, 2018. As the trial approached, extensive motions in limine were filed by the parties, including motions addressed to complicated and unique issues as to the applicable standard of care. (See Dkt. 72; Dkt. 75; Dkt. 78; Dkt. 80; Dkt. 83; Dkt. 86; Dkt. 89; Dkt. 95; Dkt. 98; Dkt. 101; Dkt. 104; Dkt. 105; Dkt. 107; Dkt. 111; Dkt. 113). A lengthy pretrial conference was held on August 1, 2018, at which time the Court ruled from the bench on some of the pending motions and reserved decision on others. A further pretrial conference was scheduled to go forward on August 28, 2018, and with the consent of the parties, the Court also scheduled a settlement conference for August 8, 2018. At that settlement conference, after several hours of mediation, the parties agreed to settle the matter for $6,000,000. (Dkt. 155).

Thereafter, on October 24, 2018, Plaintiff filed the instant motion, seeking approval of the proposed settlement and resolution of the fee amount due to Cellino & Barnes. (Dkt. 156). The motion was served on Cellino & Barnes (Dkt. 161), which was directed to file a response by November 15, 2018 (Dkt. 162). On November 14, 2018, a Response Affirmation was filed by Mr. Goldstein, wherein he set forth the tasks allegedly performed by the firm prior to Plaintiff terminating its services. (Dkt. 164). The Response Affirmation contained no information as to the background or qualifications of the Cellino & Barnes personnel who performed work on the case, nor did it contain an estimate of the hours performed on the case, the timekeepers' reasonable hourly rates, or the amount that Cellino & Barnes contended it was due (other than to state the firm was entitled to "a reasonable percentage of the fee"). Plaintiff filed a reply on November 26, 2018. (Dkt. 165).

Oral argument was held before the undersigned on December 7, 2018, with Mr. Goldstein appearing on behalf of Cellino & Barnes. (Dkt. 168). At oral argument Mr. Goldstein contended for the first time that the firm had devoted approximately 80 hours of time during the less than 30 days it was involved in the case. Mr. Goldstein stated that half of those hours consisted of his time (i.e. 40 hours), which could be broken down to less than 2 hours that he spoke on the phone with the adjuster and Plaintiff, 20 hours that...