Kasserman and Bowman, Pllc v. Cline

• Citation: 675 S.E.2d 890
• Decision Date: 27 March 2009
• Docket Number: No. 34140.,34140.
• Parties: KASSERMAN AND BOWMAN, PLLC, Plaintiff Below, Appellant, v. Jane L. CLINE, Defendant Below, Appellee.
• Court: Supreme Court of West Virginia

675 S.E.2d 890

KASSERMAN AND BOWMAN, PLLC, Plaintiff Below, Appellant, v. Jane L. CLINE, Defendant Below, Appellee.

No. 34140.

Supreme Court of Appeals of West Virginia.

Submitted: January 27, 2009.

Decided: March 27, 2009.

Syllabus by the Court

1. "A circuit court's entry of summary judgment is reviewed de novo." Syllabus point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. "`"A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).' Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992)." Syllabus point 2, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

3. "The circuit court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial." Syllabus point 3, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

4. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

5. "A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect." Syllabus point 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).

6. "A statute that is ambiguous must be construed before it can be applied." Syllabus point 1, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992).

7. "The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syllabus point 1, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).

8. "A cardinal rule of statutory construction is that significance and effect must, if possible, be given to every section, clause, word or part of the statute." Syllabus point 3, Meadows v. Wal-Mart Stores, Inc., 207 W.Va. 203, 530 S.E.2d 676 (1999).

9. W.Va.Code § 23-5-16 (1995) (Repl. Vol.2005) does not authorize an attorney to charge a fee based upon the settlement of medical benefits in connection with a workers' compensation claim.

Jonathan C. Bowman, Wheeling, WV, for the Appellant.

Darrell V. McGraw, Jr., Attorney General, David L. Stuart, Senior Deputy Attorney General, Charleston, WV, for the Appellee.

DAVIS, Justice:¹

In this appeal from an unfavorable summary judgment ruling in a declaratory judgment action, lawyer Jonathan C. Bowman, plaintiff below and appellant herein (hereinafter referred to as "Mr. Bowman"), asks this Court to resolve whether a lawyer who obtains a compromise and settlement of a workers' compensation claim for medical benefits under W. Va.Code § 23-5-7 (2005) (Repl.Vol. 2005) may collect from his or her client an attorney's fee of not more than twenty percent based upon the amount of the settlement for the statutory maximum period of 208 weeks, pursuant to W. Va.Code § 23-5-16 (1995) (Repl.Vol.2005). Based upon the briefs submitted on appeal, the parties' oral arguments, and the relevant law, we concluded that an attorney may not charge a fee based upon the settlement of medical benefits in a workers' compensation claim.

I. FACTUAL AND PROCEDURAL HISTORY

On June 22, 2005, the law firm of Seibert & Kasserman, L.C., (hereinafter referred to as "Seibert & Kasserman") filed a petition for declaratory relief in the Circuit Court of Kanawha County seeking a determination of two questions pertaining to W. Va.Code § 23-5-16.² First, Seibert & Kasserman asked whether a lawyer representing a claimant in pursuit of an earlier onset date for permanent total disability (hereinafter referred to as "PTD") could obtain a new and separate attorney's fee of twenty percent of the additional accrued PTD benefits obtained as a result of successfully obtaining an earlier onset date on behalf of a claimant for the statutory maximum of 208 weeks. Additionally, it asked whether a lawyer representing a claimant in settlement of medical benefits could obtain a new and separate attorney's fee of twenty percent for the statutory maximum period of 208 weeks based upon the amount of the settlement of medical benefits on behalf of the claimant. The plaintiff noted that it had deducted the afore-described fees from benefits obtained for its clients and held the same in escrow pending a determination of the propriety of such fees. The named defendants in this action were the executive director of the Workers' Compensation Commission, and numerous clients for whom Seibert & Kasserman had obtained a compromise and settlement of medical benefits pursuant to W. Va.Code § 23-5-7.³

During the course of the litigation below,⁴ the petitioning law firm, Seibert & Kasserman, L.C., voluntarily dismissed all of the named defendants who had been its clients, leaving the executive director of the Workers' Compensation Commission as the only defendant.⁵ Thereafter, Seibert & Kasserman was dissolved, the Workers' Compensation Commission was abolished, and the West Virginia Insurance Commissioner was given regulatory authority over the workers' compensation industry.⁶ Accordingly, the law firm of Kasserman and Bowman, PLLC (hereinafter referred to as "Kasserman & Bowman"),⁷ was substituted as plaintiff, and Jane L. Cline, as Insurance Commissioner, was substituted as defendant. Kasserman & Bowman then filed a motion for summary judgment. In its motion, Kasserman & Bowman expressly stated that it was no longer seeking a determination of whether it could obtain a new and separate attorney's fee of twenty percent of the additional accrued PTD benefits obtained as a result of successfully obtaining an earlier onset date.⁸ Therefore, the summary judgment hearing pertained only to whether attorney's fees could properly be withheld from the compromise and settlement of medical benefits claims. During the hearing, the circuit court commented:

Well, I mean, I think what I'm being asked to do, though, is to read something into a statute that's simply not there.

In fact, it's to the contrary, and I really do believe that the legislative arena is the place where this issue ought to be addressed as to issues of public policy. That's what they do day in and day out.

You know, I'm not unsympathetic to the kind of dilemma that you're in, but I believe that the statute is very clear.

So what I'm going to do is I'm going to deny the motion for summary judgement and enter it as a final order and if you want to take any appeal of that to the Supreme Court, then you know, I welcome that.

Following the hearing, by final order entered October 22, 2007, the Circuit Court of Kanawha County denied Kasserman & Bowman's motion for summary judgment. In addition, the circuit court expressly ruled that "West Virginia Code § 23-[]5-16 does not permit a 20% contingency fee to be awarded upon the settlement of medical benefits in a [w]orkers' [c]ompensation claim," which ruling effectively granted summary judgment in favor of the Insurance Commissioner.⁹

II. STANDARD OF REVIEW

The instant case is before this Court on appeal from an adverse summary judgment ruling. It is well established that "[a] circuit court's entry of summary judgment is reviewed de novo." Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). In this regard, we have explained that, "[w]hen undertaking our plenary review, we apply the same standard for granting summary judgment as would be applied by a circuit court." Subcarrier Communications, Inc. v. Nield, 218 W.Va. 292, 296, 624 S.E.2d 729, 733 (2005). Accordingly, in conducting this plenary review, we bear in mind that

"`[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963)." Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).

Syl. pt. 2, Painter, 192 W.Va. 189, 451 S.E.2d 755. Furthermore, "[t]he circuit court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial." Syl. pt. 3, id.

Finally, we note that the issue raised in this appeal presents a legal question. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

III. DISCUSSION

The issue we are asked to resolve in this appeal is whether W. Va.Code § 23-5-16¹⁰ permits a twenty percent contingency fee to be awarded upon the settlement of medical benefits¹¹ in a workers' compensation claim.¹² In deciding this narrow question we look to the specific language of that section of the code, which states:

No attorney's fee in excess of twenty percent of any award granted shall be charged or received by an attorney for a claimant or dependent. In no case shall the fee received by the attorney of such claimant or dependent be in excess of twenty percent of the benefits to be paid during a period of two hundred eight weeks. The interest on disability or dependent benefits as provided for in this chapter shall not be considered as part of the award in determining any such attorney's fee. However, any contract entered into in excess of twenty percent of the benefits to be paid during a period of two hundred eight weeks, as...