Holbrook v. Andersen Corp.

• Decision Date: 18 January 1991
• Docket Number: Civ. No. 89-0161 P.
• Citation: 756 F. Supp. 34
• Parties: Mark A. HOLBROOK, Mary E. Holbrook, Individually and as Mother and Next Friend of Daniel M. Holbrook, Plaintiffs, v. ANDERSEN CORPORATION, Defendant.
• Court: U.S. District Court — District of Maine

756 F. Supp. 34

Mark A. HOLBROOK, Mary E. Holbrook, Individually and as Mother and Next Friend of Daniel M. Holbrook, Plaintiffs, v. ANDERSEN CORPORATION, Defendant.

Civ. No. 89-0161 P.

United States District Court, D. Maine.

January 18, 1991.

COPYRIGHT MATERIAL OMITTED

James Campbell, Boston, Mass., for plaintiffs.

Martha Gaythwaite, Portland, Me., for defendant.

MEMORANDUM OF DECISION AND ORDER

GENE CARTER, Chief Judge.

This matter is before the Court on the motion of Plaintiffs Mark A. Holbrook and Mary E. Holbrook for approval of a settlement they entered with Defendant on behalf of their minor son, Daniel M. Holbrook. For the reasons that follow, the Court will grant Plaintiffs' motion.

Background

On July 16, 1988, Daniel M. Holbrook, then 2 and ½ years old, sustained serious injuries when he fell through a second story window at his home in South Durham, Maine.¹ The child's parents, Mark and Mary Holbrook, subsequently retained Campbell & Associates, P.C., a law firm with offices in Boston and Cambridge, Massachusetts, to represent themselves and their son in any action arising out of their son's accident. Campbell & Associates agreed to take the case on a contingency basis, and the Holbrooks and Campbell & Associates executed a contingent fee agreement on August 5, 1988 at the firm's Boston office. The fee agreement provided that the Holbrooks would pay their counsel reasonable compensation not to exceed 40% of the gross amount of any settlement or judgment collected, and that they would in any event be liable for counsel's reasonable expenses and disbursements.²

On June 21, 1989, Plaintiffs filed suit against the manufacturer of the screen and window unit, alleging that the unit was defective because it failed to retain the child and did not have a warning. After discovery was complete and the case was set for trial, the parties agreed on the Friday before the trial was scheduled to commence on the following Monday to a compromise settlement in the amount of $725,000. Plaintiffs moved on September 7, 1990 for an order approving the settlement.

As of September 7, 1990, Daniel Holbrook had incurred medical expenses in the amount of $139,028.08. Mark Holbrook is a chief petty officer in the United States Navy and is stationed at the Brunswick Naval Air Station. The Department of the Navy paid 80% of Daniel Holbrooks medical expenses through the Navy's CHAMPUS program. The Department of the Navy has a potential claim to a portion of the proceeds of the settlement; the status of that claim has yet to be determined.³ See 42 U.S.C. § 2651.

Campbell & Associates now seeks, pursuant to the contingent fee agreement, a reasonable counsel fee of $290,000. That sum represents 40% of the gross proceeds of settlement. The contingent fee agreement in effect between the parties limits the amount of the contingency fee to 40% of the gross proceeds of settlement or judgment. Plaintiffs' counsel also claims to have incurred $157,506.49 in costs and expenses in the course of pursuing Plaintiffs' claims pursuant to the agreement, and now seeks reimbursement for that amount. The Court held, on January 14, 1991, a lengthy hearing on the pending motion. Plaintiffs Mark A. and Mary E. Holbrook were in attendance at the hearing. They have no objection to the claims made on the motion for reimbursement of counsel's costs and expenses and the award of the counsel fee sought by Plaintiffs' counsel herein. They seek approval of the settlement and allocation and disbursement of the settlement proceeds as now requested by Plaintiffs' counsel.

I.

As a preliminary matter, the Court must ascertain the relevant law to apply to the issues generated by Plaintiffs' motion. Since this is a diversity case, the Court must apply the choice-of-law rules of the state in which it sits. McAllaster v. Bruton, 655 F.Supp. 1371 (D.Me.1987) (citing Klaxon v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941)). The Maine Law Court applies the local law of the state which has the most significant "contacts and relationships" to the parties, transaction or occurrence, or the most significant governmental interests, when a choice-of-law issue arises as to an issue in tort, Beaulieu v. Beaulieu, 265 A.2d 610 (Me.1970), or an issue of contract. Baybutt Construction Corp. v. Commercial Union Insurance Co., 455 A.2d 914, 918 (Me.1983) (relying on Restatement (Second) of Conflict of Laws § 188 (1971)), overruled on other grounds, Peerless Insurance Co. v. Brennon, 564 A.2d 383 (Me.1989).

The issue presently before the Court, however, does not fit neatly into either the tort or contract category. Plaintiffs ask the Court to approve a compromise and settlement entered into on behalf of their minor child, including an award of attorney's fees.⁴ In the Court's view, the present motion generates two major issues: (1) the reasonableness of the settlement, with special attention to be paid to the best interests of the minor; and (2) the applicable standards of professional conduct of counsel appearing before this Court, over which the Court possess inherent supervisory power.

In determining, pursuant to the Court's own Local Rule 31, the reasonableness of the settlement, the Court concludes that Maine law is applicable and defines the legal standards that are to govern the Court's inquiry. The dominant themes of applicable Maine law are that the Court shall protect the interests of the minor plaintiff and that counsel are entitled to reasonable compensation in the circumstances of the case. The State of Maine has a special interest in safeguarding the interests of its citizens and, in particular, the interests of its minors. The Court is certain that a Maine court, faced with this choice-of-law issue, would apply Maine standards to the approval of the settlement, including the reasonableness of any award of costs and attorney's fees.

Further, with respect to the standards of professional conduct applicable to attorneys admitted to practice before this Court, this Court, pursuant to its Local Rules, has adopted the Code of Professional Responsibility adopted by the Supreme Judicial Court of Maine. See Local Rule 5(d)(2).⁵ The Court concludes that those rules govern the conduct of counsel in this case.⁶

II.

The Court briefly reviews the parameters of its review of this compromise and settlement. The Court must review the terms of the compromise and settlement and assure itself that the settlement is fair, reasonable and in the best interests of the minor.

With respect to the issue of attorney's fees, the contingent fee agreement is subject to the requirements of the Code of Professional Responsibility, which prohibits an attorney from entering an agreement for an excessive fee.⁷

Even if the Court finds that the fee agreement involved here does not result in an excessive fee, it still must examine the agreement to determine whether the agreement is binding on Daniel Holbrook, a minor. The general rule is that an "agreement to a contingent fee contract by a parent or next friend on behalf of a minor is not necessarily binding on the minor, whose interests are subject to the protection of the court." Dean v. Holiday Inns, 860 F.2d 670, 673 (6th Cir.1988) (applying Michigan law). The Court must independently investigate the fee to be charged against the minor's estate to insure that it is "fair and reasonable compensation to the attorney regardless of any agreement specifying an amount, whether contingent or otherwise." Id.⁸ In this Court's view, Maine law would require application of the general rule described above.⁹

III.

The Court, due to the facially questionable factual aspects of the counsel fee application and request for reimbursement of expenses and costs, has reviewed with special care and in great detail the voluminous submissions of Plaintiffs and their counsel showing the detailed factual bases for the claims for reimbursement of expenses and costs and for counsel fees. These include memoranda of law, affidavits, and Plaintiffs' counsel's documentation of expenses and attorney time spent in the prosecution of this litigation, as well as the costs that are properly part of overhead, but nevertheless associated with the prosecution of Plaintiffs' claims.¹⁰ The Court is also intimately familiar with the history of this case, as it has been continuously involved with pretrial proceedings in respect thereto throughout its pendency. After applying the principles described above, the Court makes the following findings and conclusions:

IV. FINDINGS AND ORDER

(1) The Court FINDS the compromise and settlement of Plaintiffs' claims against Defendant Andersen Corporation for the payment of the amount of Seven Hundred Twenty-Five Thousand Dollars ($725,000.00) to be fair and reasonable in consideration of the unique difficulty of said claims and the remoteness of the likelihood of a significant recovery being effected thereon at trial. It is hereby ORDERED that the compromise settlement in the said amount be, and it is hereby, APPROVED. It is hereby ORDERED that Defendant Andersen Corporation shall pay to Plaintiffs' counsel within fourteen (14) days from the date of this order, the settlement proceeds in the amount approved above upon execution and delivery of the appropriate settlement documents.

(2) The Court hereby APPROVES as fair and reasonable the payment to Mark A. and Mary E. Holbrook, the parents of Daniel M. Holbrook, jointly, of Fifty Thousand Dollars ($50,000.00) from the proceeds of settlement as reimbursement to them for uninsured medical and other expenses incurred by them, or either of them, on behalf of the minor and as compensation for their loss of consortium resulting from the minor's injuries. It is hereby ORDERED that Plaintiffs' counsel disburse said amount to them jointly forthwith upon receipt of the settlement proceeds.

(3) The Court hereby APPROVES as fair and reasonable, in the...