*1 III. conclusion, we find that the evidence jury appel-
was sufficient for the to find the kidnapping, guilty
lant of the crime of no the circuit committed error
denying motion Kitchen’s to dismiss the
charge kidnapping.
Affirmed. BASS, Below, Appellee, Plaintiff
v. COLTELLI-ROSE,
Laura Defendant
Below, Appellant.
No. 26658.
Supreme Appeals Court of Virginia.
West
Submitted March 2000. July
Decided 2000.
Concurring Dissenting Opinion July
Justice Davis
Dissenting Opinion of Justice
Scott Oct. *2 proceeds
that the of such insurance contracts was not within the terms of the reverse, Rose and Mr. Bass. We between concluding that such recoveries were contem- plated by provisions of the contracts. I.
BACKGROUND disput- The basic facts of this case are not Douglas guest passenger was a ed. Bass Weakley, when that a ear driven Darren September a car was struck Cary Dunham. Mr. Bass vehicle driven accident, minor at was a the time thereafter, his shortly on October mother, Bass, represent Mabel hired Rose to signed Bass both her and her son. Mrs. “Authority Represent” form autho- which representation with rized Rose undertake Dunham, respect against Cary or to a “claim son, my Douglas whoever is liable for Bass’ damages resulting from an acci- which occurred on or about dent incident Berkeley County, September 1990 at specified the The further WV.” fee, a of one-third acknowledgment “[i]t contained an agreed that will be understood and the fee amount of the calculated on the entire recov- (settlement verdict).” ery representation of the Basses result- Rose’s from several different ed recoveries Initially, sought Rose and obtained sources. Douglas Bass’s medical reimbursements Schultz, Burke, Esq., D. Burke & Michael payments coverage of bills under the medical Virginia, Attorneys for Martinsburg, West policy with Weakley’s automobile insurance Appellee. Company, up to the Insurance State Farm $25,000 limit. deducted her policy’s Rose Gustke, Elkins, Esq., Cynthia Vir- S. West proceeds contingent fee from these one-third Attorney Appellant. ginia, remaining ($8,333.33), and remitted the Bass was amounts to Mrs. Bass. Mabel PER CURIAM: initially lodged procedure, and aware of this (“Rose”), Appellant Laura Coltelli-Rose complaint. no below, appeals January defendant liability portion of August final order of the Circuit Court of through granted summary Douglas Bass’s claim was resolved Berkeley County, which liability in- negotiated Dunham’s appellee Douglas settlement. judgment in favor of $200,000, pay below, agreed to claim that had surance earner plaintiff on his obtaining under Mrs. on re- Rose also improperly coverage with motorist Bass’s underinsured obtained under the coveries eigh- had turned Farm. Bass separate automobile State ments of two paid and thus was policies. circuit court ruled on June insurance teen matter, directly. imposed concluding missed these sums Rose likewise that the issues recovery, a one-third factually developed raised were not so as to disputed. has been adjudication never permit questions. of the certified Coltelli, Bass v. liability point after At some settlement *3 S.E.2d 350 1991, August, relationship in between Mrs. Bass her son Be- and became strained. granted subsequently The circuit court perceived a conflict of in cause she interest summary Douglas judgment to on Bass Jan- them, representing rep- both of Rose ceased 28, uary 1999, concluding that contin- “[t]he resenting subsequently Mrs. who was gent by fees on [Rose] the medical contingent agreement out of new left fee payment by recoveries not were covered Douglas Bass on September with executed contingent by contract entered into either 28,1992.1 Bass_” Douglas Mabel Bass or The ra- tionale this behind conclusion was as follows: seeking
Rose had for some been addi- time expenses tional reimbursement for medical It opinion court’s that these two under medical of contingent fee ... contracts entered into policy Mrs. Bass’s own insurance with State parties between the to and were related initially Farm. State Farm declined to stack dealt with a tort claim which Mabel and however, coverage payments; in Au- medical Dunham, Douglas against Cary Bass had 1992, $21,- payment gust Rose secured Doug- whoever caused 666.52, paid Douglas which was Bass di- las Bass received in the accident described rectly. again took Rose one-third contract, cover, in the and did not under $7,221.17, recovery, contingent as her fee. terms, any moneys their which would be any insurance, payable under contract previously sought Mrs. Bass had and ob- except Dunham, by Cary insurance carried April, new tained counsel who subse- operation which covered his vehi- quently demanded that Rose refund the one- cle at the time he caused the accident. contingent third took fee she from the $25,000 payment medical benefit on the $13,472.17 The court ordered Rose to refund Weakley apparent sugges- At vehicle. retained, previously fees less a Virginia tion of ethics counsel for the West quantum meruit fee for her It is services. Bar, State Rose her reduced one- appeals. from this now order Rose third to one-fourth the first medi- paid cal benefit. II. She this refund ($2,088.33)directly Douglas Bass. Howev- DISCUSSION er, resolved, the matter was not and on 15, 1993, January presents Mrs. Bass filed this action This ease the Court with the Douglas straightforward and Bass. An determining amended task of whether complaint April properly interpreted was filed on circuit where court the fee Douglas plaintiff. party question. Bass became the On Specifically, contract must we granted November circuit ascertain whether the contract between Rose summary judg- contingency the defendants’ motion for contemplated and Basses later, however, respect ment. The court to a rescinded obtained under order, attempted certify initial payments coverage its afforded questions to policy. various this Court. Review was find that automobile insurance We initially granted, but this Court dis- later it did.2 marily 1. The terms and of this second fee Committee conditions Ethics v. Tatter agreement signed Douglas son, Bass were (1986), identical 177 W.Va. previously to those contained in the document charging where the Court held that a one-third executed Mabel Bass in 1990. October undisputed pro fee to collect policy ceeds of a life insurance was excessive. asks take matter Bass this Court While we have "[w]e indicated that further, and consider the circuit court's the whether rationale, are not wed ... to the lower court's ruling should be affirmed on basis that may ground rule but alternate manifest imposed by Rose was excessive. Szabo, argument, making pri-' Conrad W.Va. Mr. Bass relied the record.” v. ARA “ tently emphasized ‘[i]t
The court below determined the safest words, ambiguous. give contract in was not best mode construction to free Police, As stated in Fraternal Order ambiguity, plain ordinary their ” Fairmont, Lodge City Dove, No. 69 v. W.Va. meaning.’ Syl. pt. Bennett v. “it is for a trial S.E.2d court to determine whether the terms of an (quoting syl. pt. Williams v. Penn South and, unambiguous integrated are (1903)). Co., Oil S.E. so, according if to construe contract to its Watson, See also Nisbet v. plain meaning.” Id. at 468 S.E.2d (1979) (“the lan- “A valid written instrument ex guage of a contract must be accorded its parties presses plain the intent of the and plain meaning.”). *4 subject judi unambiguous language is not to interpretation cial construction or but will be long ago recognized, As this Court applied according to in and enforced such expansive meaning, has the term “liable” Syl. pt. Cotiga
tent.”
Dev. Co. v. United
“
party
encompasses
being
a
‘bound or
Co.,
Fuel Gas
147 W.Va.
liability, permitted to the exclusion of contractual sion that the contract Rose to Surety court in obligation. payments National recover fees from the medical ob- rejected argument, noting that “[t]he tained from her clients’ own insurer. There- fore, part I in general part word ‘liable’ does not indicate of concur dissent to liability majority’s opinion. upon what the insured’s must itself upon.” Id. at 495. predicated be The use of present fee contract is no this term the A. THE PERMITTED CONTRACT RE- more restrictive. COVERY OF FEES FROM MEDI- limiting application than Rather CAL PAYMENTS OBTAINED FROM Rose’s recoveries obtained DARREN WEAKLEY’S INSURER tortfeasors, interpret third-party attempted to obtain one-third plain wording provision proceeds from the medical collect- encompass any recovery par- from a secured Weakley’s ed from insurer. She recovered ty legally obligated compensate who is $25,000.00 Thus, from the insurer. Rose ini- for the Douglas Bass losses occasioned tially ($8,333.00) retained one-third the car accident which he was involved. language based of her hold that circuit
We therefore contract with Basses.1 Under the con- ruling contrary.4 erred *5 tract, agreed Rose and the Basses that she recovery would receive one-third of the from
III. injuries ... “whoever is liable for or dam- ages resulting from [the] accident.” CONCLUSION stated, judgment For the reasons The circuit court quot restricted the above Berkeley County the Circuit Court is re- ed-language to mean that Rose could recover proceedings and remanded for versed further person the fees from the who struck the opinion. this consistent with car in which riding Mi'. Bass was when he injured. majority opinion was correctly The Reversed remanded. interpretation found that such an of the con DAVIS, Justice, concurring part wrong. in tract was In the context of claim insurer, dissenting part: against Weakley’s Mr. is no there ambiguity in the contract. It is a well settled (Filed 19, 2000) July principle of law “[w]here that the terms of This Court was asked to determine wheth- contract and unambiguous, are clear er the trial court committed con- error applied Sylla must be and not construed.” cluding that a fee contract be- point bus Corp. Bethlehem Mines v. Ha attorney Laura tween Coltelli-Rose and her den, clients, Bass, Douglas pro- Mabel Bass and recovery for no Weakley vided of fees for medical was the driver of car in which payments obtained on passenger behalf the Basses. Mr. Bass was a when he sustained majority opinion injuries. The that concluded the trial his Neither Bass nor his moth- Mr. er, court indeed committed error because such a Mrs. owned the vehicle driven recovery provided was Weakley. for the contract. I While the record in this case does agree majority’s with the decision that Rose not disclose separate whether not a action compensation was against Weakley, entitled under the con- was initiated it is clear that recovering tract for work in potential present. her medical claim was In other words, Weakley’s Weakley potential adversary. ments from Darren insurer. I awas however, disagree, majority’s posture, with the deei- this Rose’s contract with the Bass brings assignment also of error claim- which was denied. We find claim ing failing that circuit court abused its discretion in to be meritless. lawyer, disqualify Bass’s based alia, inter upon, initially the fact that counsel had Ultimately, Rose retained one-fourth of the re- represented present Mabel Bass in the action. covery. subject petition This matter was the of a for writ prohibition April filed in this Court in any ambiguity in clearly receive one- the contract has to family entitled her to be inter- Weakley. preted against any recovery obtained from the maker the contract. third of
Here, Therefore, this contract maker is Rose. ruling against the circuit court was correct in B. THE CONTRACT WAS AMBIGUOUS portion Rose as to her fee that result- WHETHER ROSE COULD AS TO paid by ed monies the Basses’ own FEES FROM MEDICAL RECOVER majority opinion insurer. wrong The THE FROM PAYMENTS OBTAINED reversing ruling lower court’s in this INSURER BASSES’ regard. Although I contract was not am- find the stated, respectfully For the reasons I recovery of fees involv- con- biguous as Rose’s part part majori- cur in dissent to the ing Weakley, ambiguity I existed as believe ty opinion. permitted recov- to whether the contract
ery payments ob- fees SCOTT, Justice, dissenting: tained from the Basses’ own insurer.2 The majority opinion upon language has relied (Filed 2, 2000) Oct. opinion in 1914 to from an written conclude majority’s interpretation I dissent from the “liable,” con- word as used language, the contractual “claim tract, enough meaning to has broad include ... whoever is liable of fees from medical ob- accident,” damages resulting from ... [the] tained from the Basses’ own insurer. The and, payments coverage includes medical majority opinion wrong. therefore, properly subject language in proper construction of the to a fee. The lower correct- “lia- the contract is not limited to the term ly interpreted provisions the contractual controlling language is ble.” The “liable charged by mean that “[t]he fees *6 injuries resulting damages [the] ... from pay- [Ms. Coltelli-Rose] the medical language contends that this accident.” Rose ment recoveries were not covered the clearly contemplated recovery shows that she contingent fee contract into entered either Bass- of fees from monies obtained from the ...,” Douglass Mabel Bass or Bass and or- clarity such es’ own insurer. No exists. The dered Ms. Coltelli-Rose to refund the ambiguous. “It language of the contract is is $13,472.17 contingent previously fees re- any ambiguity that in a also well settled tained, quantum less a meruit fee for her party contract must be the resolved company services.1 The insurance Watson, 162 prepared who it.” Nisbet v. provide coverage to Mr. Bass was not an (1979). 522, 530, W.Va. 251 S.E.2d 780 entity damages for ... “liable Gas, Inc., Hays v. Ancro 186 & Co. Oil & Rather, resulting from ... [the ] accident.” (1991). 411 480 W.Va. S.E.2d company the was to Mr. insurance liable may
I little doubt that Rose have Bass because of the terms of the have insurance contract, contemplated recovering policy, ob- a claim of not tort. fees monies contingent agreement Basses’ own insurer.3 How- terms of the fee did tained the ever, contemplation was not made not otherwise make reference to medical such law, party our or other first bene- evident the contract. Under case $21,666.00 [bjefore theory under the recovered in medical fee awarded meruit, quantum re- ments from Mrs. Bass’s insurer. Rose then there must first be a determi- $7,221.00 contingency attorney’s her fee for re- tained nation of the reasonable value of the trieving these monies. services rendered on behalf of the client. Identifying the reasonable value of an attor- lawyers ney’s requires It is most unusual for to seek fees services an examination of vari- fact, majority payments. medical the of the such ous factors that concern issues as the case, plaintiffs' spent difficulty bar does not take a fee of time on the amount case, recoveries obtained from their of the and the outcome reached in the client’s own insurer. case. Ltd., Co., Pritt v. Motor 204 W.Va. Suzuki (1998). 1. We have stated that even 513 S.E.2d 169 excessive, fee contract is reasonable or “[w]here fits. It is well settled apply following analysis: unambigu- a contract are clear and terms of ous, attorney’s applied and not con- “The must be reasonableness fees generally based on broader factors such Corp. Syl. Pt. Bethlehem Mines strued.” (1) (2) required; as: the time and labor Haden, v. S.E.2d (3) novelty difficulty questions; and of the (1969). Thus, plain unambigu- and under the perform requisite the skill to contingent agreement, ous terms of the fee (4) properly; preclusion of oth- service correctly concluded the lower employment by attorney er due person is liable” referred to the “whoever (5) case; acceptance customary of the injuries, responsible causing Mr. Bass’ (6) fee; whether the fee is fixed or contin- 1.e.,the tortfeasor. (7) gent; imposed by time limitations (8) circumstances; majority’s client or the amount disagree I total also obtained; (9) involved the results contingent whether the failure consider experience, ability reputation, and of the If was reasonable and ethical. (10) attorneys; undesirability of the go majority would have bothered to be- (11) case; length the nature and yond contingent of whether the client; professional relationship with the ambiguous, a much differ- Sylla- awards similar cases.” opinion ent would have been reached Casualty Surety bus Point Aetna & Co. principles important much would have more Pitrolo, v. S.E.2d been discussed. (1986). though Even the circuit court was not re Henson, Syl. part, Pt. Erwin v. quired to address whether the (1998); accord imposed by Ms. Coltelli-Rose was reasonable Daily Virginia Gazette Co. v. West Dev. Of- excessive, it is well established fice, 206 W.Va. “[cjourts powers supervise have inherent attorney the collection of fees and monitor Unfortunately, majority it un- deemed agreements.” v. Jenkins necessary engage in discussion of the rea- (S.D.W.Va. McCoy, F.Supp. sonableness or excessiveness of the fee 1995). of whether a contin “Determination facts, charged by Ms. Coltelli-Rose. The gent fee is reasonable is not limited to an however, clearly indicate that *7 interpretation of the itself. The payment expenses by for medical incurred Bass, court must consider the circumstances sur Douglas which was received from the rounding negotiation per both the and the company insurance that insured the automo- passenger of the fee contract.” bile which Mr. Bass was a at formance accident, Id., questioned (emphasis the time of the was not at 556 added and citations omitted). routinely words, par- and was received and without In other the reasonable fact, problems. ticular As a of matter any attorney by ness of fee is determined only performed by service Ms. Coltelli-Rose fact, appear as circumstances which after the concerning payment sending was the of they appeared well as the facts as to be or company to letters the insurance which recit- might become as seen before the event. ed what services the bills were for and from Generally, Virginia “courts in West will providers they which medical service came. uphold contingency arrangements volun- Regarding the second for medical tarily long parties into as entered $21,666.52, expenses in the amount of which excessive, overreaching, are not and do company was received from the insurance inequitable advantage not take of a client.” insured the automobile owned Mr Collins, Assocs., Kopelman mother, L.C. v. Bass or his Mabel the lower 917 n. 7 receipt of this noted Thus, apparently determining contingent In whether a “was more difficult.”2 it is just While the circuit court noted that "there were The extent of how difficult this was is not ‘anti-stacking’ poli- judgment apparently provisions in clear in the circuit final order. court’s (8)whether charged that Ms. obvious Coltelli-Rose the fee fixed or contin- $8,333, $2,083, gent. of which she latter refunded perform writing service several Id. basically letters the same ser- Further, this Court has held It is
vice. clear to me that these fees should syllabus points two and three Committee found to Basically, have been be excessive. Tatterson, Ethics v. charged Ms. Coltelli-Rose and received an that: attorney’s exorbitant amount of fees for col- If attorney’s grossly dispropor- fee is lecting payments coverage under a tionate to the services rendered and is contract which dispute was not in and which charged to a client who lacks full informa- paid by major the insurer without con- tion about all of the relevant circum- troversy. stances, “clearly the fee is excessive” with- meaning Disciplinary 2- Rule contingent Not is the this ease 106(A), though even the client has consent- unreasonable, potentially it is unethical as proof ed such fee. The burden Virginia well. Rule 1.5 of the West Rules of attorney to show the reasonable- Conduct, governs Professional attor- ness and of the contract fairness for the ney’s general, fees in dictates what elements attorney’s fee. comprise provision a reasonable fee for the risk, In the absence of real an attor- professional legal services: ney’s purportedly contingent fee which is ( n ) lawyer’s A fee shall be reasonable. grossly disproportionate to the amount of The factors to be considered in determin- required “clearly work is a excessive fee” ing the of a reasonableness fee include the meaning Disciplinary within the Rule 2- following: 106(A). (1) Syl. S.E.2d at Pts. required, time and labor nov- 2 and 3. elty difficulty questions of the in-
volved, requisite perform and skill reaching holdings, the above-mentioned legal properly; service expressly fact that discussed the a contin- be, fact, gent contingent, stating: fee must (2) likelihood, apparent if to the requirement fully The that the client be client, acceptance particular applies especially informed contingent- to a employment preclude employ- will other fully fee contract. The client needs to be lawyer; ment degree informed as to justifying risk customarily in the contingent generally fee. Courts have locality services; for similar truly insisted that a fee be con- tingent. typically elevated (4) the amount involved and results ob- reflecting attorney the risk tained; *8 receiving usually permitted no will be (5) by the imposed time limitations the only representation if the indeed involves a circumstances; by client or the significant degree of risk. The clearest ease where there would be an of absence ( n ) length profes- and nature of the real risk would be a case in which an client; relationship sional with the attorney attempts to collect from a client a (7)the experience, reputation, and abili- supposedly contingent obtaining fee for in- ty lawyer lawyers performing of the proceeds surance for a client when is there services; and no indication that the insurer will resist which attempts cies” the second medical cult, could have made the collection of "Laura Rose now to overstate the extent payment amount more diffi- necessity suggesting and of her services in a Appellee, Mr. indicated that even 'stacking' issue interfered with full of the second amount was "obtained on an uncon- pay, support the med but there is no evidence to Appellee’s tested basis” from the insurer. The this assertion.” Appellee states in footnote five of his brief that 738 risk, fee, claim. In any clearly of a absence real collection of excessive there attorney’s purportedly by fulfilling primary purpose of attor grossly disproportionate ney-disciplinary proceedings, specifically, required “clearly
amount of work
is a
ex
protecting
public
maintaining
and
meaning
cessive fee” within
of
Disci
integrity
legal profession.
See In re
2-106(A).
plinary
150, 160,
Rule
See Florida Bar v.
Teichner, 104 Ill.2d
83 Ill.Dec.
Moriber,
(Fla.1975)
145,
314
146-49
972,
So.2d
470 N.E.2d
977
cert.
(33»
moneys
upon
due to client
moth
denied,
1757,
U.S.
S.Ct.
death;
layman
er’s
performed
could have
(1985); MacKinnon,
L.Ed.2d 820
F.
Con
attorney; major
same services as
funds
tingent
Fees for
Services 44-45
passed
law);
by operation
to client
In re
(1964).3
Teichner,
150, 153-54, 160-63,
104 Ill.2d
Tatterson,
362-63,
at
S.E.2d
552, 553-54, 557-58,
Ill.Dec.
470 N.E.2d
(footnote
at 113-14
and
omitted
footnote add-
973-74,
(25% group
977-78
ed).
insurance;
paid proceeds
life
insurer
rou
tinely
question; attorney’s
without
claimed
conduct,
professional
Under these rules of
“exaggerated”),
services
“artificial”
were
as well as the standards enunciated
denied,
rt.
470 U.S.
105 S.Ct.
ce
rulés,
interpreting
Court
those
the contin-
(1985);
Contracts for
fee,”
clearly
“protect[]
public
excessive
having greater potential
overreaching
integrity
legal pro-
contract,
maintain[ ]
clients than a fixed-fee
are
closely
fession.” See id.
ations of the
ease, responsibility this Court’s undermines principles uphold the ethical