Estate of Salerno, In re
| Decision Date | 04 May 1993 |
| Docket Number | No. 31063S,31063S |
| Citation | 630 A.2d 1386,42 Conn.Supp. 526 |
| Parties | In re ESTATE of Pasquale SALERNO. |
| Court | Connecticut Superior Court |
Carmody & Torrance, New Haven, D.V. Esposito and Zeldes, Needle & Cooper, Bridgeport, for the plaintiff, Rita Salerno, conservatrix (estate of Pasquale Salerno).
Michael R. Bullers and Daniel R. Schaefer, Asst. Attys. Gen. and Richard Blumenthal, Atty. Gen., for the defendant, state of Connecticut.
No appearance for the defendant, Koskoff, Koskoff & Bieder.
This appeal from the Probate Court for the district of North Branford presents certain issues of first impression concerning General Statutes § 52-251c, the attorney's fee cap statute, enacted in 1986 as part of the tort reform legislation adopted by the legislature. In an effort to ensure that the plaintiff in a personal injury action would actually receive a larger portion of any judgment or settlement amount, the legislature established certain limitations on the amount of the judgment or settlement that could be paid for the plaintiff's attorney's fees. Instead of the customary one third contingency fee, § 52-251c(b) establishes the following sliding scale fee limitation: "In any such contingency fee arrangement such fee shall be the exclusive method for payment of the attorney by the claimant and shall not exceed an amount equal to a percentage of the damages awarded and received by the claimant or of the settlement amount received by the claimant as follows: (1) Thirty-three and one-third percent of the first three hundred thousand dollars; (2) twenty-five percent of the next three hundred thousand dollars; (3) twenty percent of the next three hundred thousand dollars; (4) fifteen percent of the next three hundred thousand dollars; and (5) ten percent of any amount which exceeds one million two hundred thousand dollars."
The plaintiff contends that the fee cap statute is unconstitutional in each of the following respects: (1) it denies the plaintiff equal protection of the laws under the constitution of Connecticut, article first, § 20; (2) it violates the constitution of Connecticut, article first, § 1, by creating an exclusive public emolument or privilege for the insurance industry and the defense bar; (3) it denies tort victims due process of law; and (4) it improperly interferes with judicial rule-making authority and violates the separation of powers. The plaintiff contends further that the fee cap statute should be interpreted to permit tort victims to waive their rights under the statute and to allow them to enter into reasonable fee agreements.
The principal witness at trial was Rita Salerno, wife of Pasquale Salerno. On January 4, 1991, Salerno was appointed conservatrix of the estate and person of her husband. Mr. Salerno, who is thirty-seven years old, is totally and permanently disabled. He contracted toxic hepatitis and now suffers from severe organic brain syndrome (dementia) secondary to trichloroethylene exposure. Mr. Salerno is unable to care for himself and requires round-the-clock personal care, which is provided by his wife. They live in Northford with their three children.
Salerno contends that her husband's disability was caused by his exposure to certain toxic chemicals at his place of employment. From 1979 to 1989, Mr. Salerno worked as a vapor degreaser and was exposed to trichloroethylene and other chemicals. Mr. Salerno's medical reports confirm that his condition is related to toxic chemical exposure.
In November, 1990, Salerno consulted with Attorney Richard Bieder of Koskoff, Koskoff and Bieder about bringing suit against the manufacturers of the chemicals to which her husband was exposed. Bieder and his firm are experienced in representing plaintiffs in toxic tort litigation. He told Salerno that he would be willing to represent her, but that he would need to investigate the claim first and that the cost of the investigation would be substantial. Salerno explained that she could neither pay for the costs of the investigation nor for the costs of the legal representation on an hourly basis. The Salerno family is supported only by monthly Social Security payments of $978. Salerno is unable to be employed outside her home because she must provide the necessary personal care for her husband.
Bieder and Salerno then discussed a contingency fee. Bieder explained that the fee cap statute, § 52-251c, sets a limit on the amount of the plaintiff's contingency fees in a case such as the one Salerno proposed to bring. He explained, however, that he could not represent her for the maximum fee under the statute because it was not economically feasible for a toxic tort claim. Bieder explained that his firm would have to advance the cost of investigation, which was likely to be $20,000 to $25,000. He explained further that the litigation would be vigorously opposed, that a trial would be likely, and that his time to represent her to the conclusion of the matter would be worth between $200,000 and $400,000. Under the fee cap statute, payment of such a fee would probably be prohibited.
After further discussion, Bieder and Salerno agreed on a contingency fee of 30 percent, subject to the requirement that the Probate Court approve the written contingency fee agreement in that amount. Bieder further advised Salerno that before they finalized their agreement, she should speak with other lawyers who might be willing to take the case to see if any one of them would be willing to take her case for the contingency fee as limited by the fee cap statute. He recommended eight attorneys who were experienced in tort litigation representing the families of the seriously injured.
Using a speaker telephone in Bieder's conference room, Salerno and Bieder conferred, one at a time, with Attorney William F. Gallagher of New Haven, Attorney Matthew Schafner of Groton, Attorney Stephen I. Traub of New Haven, Attorney William R. Davis of Hartford, Attorney R. Bartley Halloran of Hartford, Attorney Garret M. Moore of Waterbury, Attorney Richard A. Silver of Stamford and Attorney Robert B. Adelman of Bridgeport. All of these attorneys are experienced in complex tort litigation. Each of them indicated an interest in taking the case on its merits or at least in proceeding to investigate the claim, but each declined the representation because of the fee cap statute, which renders complex tort litigation economically unfeasible.
Almost all of these attorneys testified at trial, explaining in greater detail the reasons why the fee cap statute makes it impractical to undertake a toxic tort claim such as Salerno's. Litigation of this type is very demanding and time consuming. Most such cases are not settled before trial and a lengthy trial is necessary to prosecute the claim. The value of the time spent by a firm to take the case through trial can be anywhere from $200,000 to $400,000 or more, calculated on an hourly basis. The fee cap statute, however, limits attorney's fees to unreasonably small amounts for such complex cases. If a verdict or settlement amount is $1,200,000 the maximum attorney's fee under the statute is $280,000. Yet the value of the attorney's time spent on the matter, when calculated on an hourly basis, could reasonably exceed $280,000.
Complex tort cases also require that the attorneys advance funds for investigation and for hiring experts. It is rare that a client can pay such expenses in advance and it is common, therefore, for the attorneys to advance the necessary funds. In toxic tort cases or product liability claims, out-of-pocket costs can be $200,000 or more. Under the fee cap statute, there is an insufficient return in light of the funds advanced by the attorney.
The attorneys testified that for both these reasons, the fee cap statute has made it economically impractical to continue to represent plaintiffs in complex tort cases. Several of the attorneys testified that they had recently handled complex tort cases where the fee was limited by § 52-251c. They found that the fee, as limited by the statute, was insufficient to cover the hours spent on the matter or to otherwise compensate them adequately. As a result, they have reluctantly decided to decline to take such complex, time...
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Parnoff v. Yuille
...the statute might be constitutionally infirm if it did not permit parties to waive its fee cap provisions. See In re Estate of Salerno, 42 Conn.Supp. 526, 630 A.2d 1386 (1993). From the report of judiciary committee chairman McDonald, it appears that the amendments, in this regard, were int......
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Parnoff v. Yuille
...the statute might be constitutionally infirm if it did not permit parties to waive its fee cap provisions. See Inre Estate of Salerno, 42 Conn. Sup. 526, 630 A.2d 1386 (1993). From the report of judiciary committee chairman McDonald, it appears that the amendments, in this regard, were inte......
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Prioli v. State Library
...to determine attorney's fees in a § 31-290a action and that the contingency fee was reasonable pursuant to In re Estate of Salerno, 42 Conn. Sup. 526, 630 A.2d 1386 (1993). The commissioner awarded Schweitzer a fee of $75,000, inclusive of the previous award of $50,000. The commissioner fou......
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Fraser v. Wyeth, Inc.
...fee plus a 16.667% in the event of an appeal, was signed, an individual could waive the statutory cap. See In re Estate of Salerno, 42 Conn. Supp. 526, 534 (Super. Ct. 1993) ("The benefits of § 52-251c can be waived."). Defendants point to no case law showing that the ability to waive the s......