White v. DaimlerChrysler Corp.

57 A.D.3d 531, 871 N.Y.2d 170
CourtAppellate Division of the Supreme Court of the State of New York
DecidedDecember 2, 2008
StatusPublished
Cited by5 cases

This text of 57 A.D.3d 531 (White v. DaimlerChrysler Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White v. DaimlerChrysler Corp., 57 A.D.3d 531, 871 N.Y.2d 170 (N.Y. Ct. App. 2008).

Opinion

[532]*532On August 24, 2002 nonparty Angela Dufont was driving a van with eight passengers, one of whom was an adult (Jeanette Penny) and seven of whom were children (Joshua Dufont, Denasia Hodge, Candace Brown, Julie Brown, Mark Penny, Bevin Williams, and Basil Williams). While driving on a divided highway in Pennsylvania, the driver lost control of the van when the right rear tire blew out. During the resulting crash, the van barrel-rolled across the median and became airborne before landing in the lanes of oncoming traffic. All of the children were ejected from the van and sustained varying degrees of injury. Joshua Dufont sustained, inter alia, intercranial bleeding, a left femoral neck fracture, a spinal fracture, a hip fracture, and injury to his right shoulder, and was rendered comatose. Candace Brown sustained, inter alia, a broken femur and a severe impact to her face, resulting in the loss of several teeth. Julie Brown sustained, inter alia, a splenic fracture and contusions to her lungs. Mark Penny sustained, inter alia, a broken femur, a head injury, and various lacerations. Denasia Hodge sustained, inter alia, a closed head injury, and various cuts and abrasions. The adult passenger (Jeanette Penny), who remained in the vehicle, died. The appellant Kerry E. Connolly was retained to litigate an action on behalf of the estate and the husband of Jeanette Penny, and on behalf of these five infant passengers.

In investigating the accident, Connolly identified and spoke to other attorneys who had handled similar claims, shipped the van to an accident reconstruction expert in North Carolina, and sent the damaged tire to a laboratory for testing. Based on such inquiries, Connolly determined that there were at least two potentially culpable parties other than the driver. First, she concluded that the tire at issue had been improperly repaired and was not the proper size for the van. Consequently, she named Fred Flat Fix, Wilfredo Cortez, Wilfredo Cortez, doing business as Fred Flat Fix (hereinafter collectively Fred Flat Fix), and “ABC Corp” as defendants. Second, she concluded that the van had a faulty liftgate latch, which allowed the liftgate to open during the accident. Consequently, she named the manufacturer of the van, DaimlerChrysler Corporation (hereinafter DaimlerChrysler), as a defendant. The driver’s insurer agreed to settle the action insofar as asserted against her for the full amount of her policy. DaimlerChrysler agreed to settle the action insofar as asserted against it for a stated sum. The proposed infant’s compromise order provided for, inter alia, [533]*533lump sum payments to the estate and husband of Jeanette Penny, and structured settlements for the infant plaintiffs in amounts proportionate to the injuries suffered. Connolly also requested an award of an attorney’s fee in a sum consistent with her retainer agreement, representing one third of the net settlement from DaimlerChrysler and 25% of the net settlement from the driver’s insurer. The Supreme Court approved so much of the proposed infant’s compromise order as concerned the amounts recovered by the infant plaintiffs, but awarded Connolly an attorney’s fee in a sum representing approximately 25% of the aggregate net settlement. We affirm the infant’s compromise order insofar as appealed from.

Judiciary Law § 474 sets forth the general rule as to attorney compensation, providing that “[t]he compensation of an attorney or counsellor for his services is governed by agreement, express or implied, which is not restrained by law.” However, despite the broad wording of the statute, the ability to contract for an attorney’s fee is not unbounded. For example, both this Judicial Department and others have promulgated rules setting parameters on what will be deemed fair and reasonable compensation on a contingency fee basis in an action to recover damages for personal injury or wrongful death resulting from negligence or any type of malpractice, other than one alleging medical, dental, or podiatric malpractice (see 22 NYCRR 691.20 [e]; 603.7 [e]). Further, by statute, if the action involves an infant, a judicially-declared incompetent, or a conservatee, the settlement of the action, including the amount of the attorney’s fee, must be approved by the court (see CPLR 1207). This requirement arises from the court’s duty to protect infants and other wards of the court (see generally Valdimer v Mount Vernon Hebrew Camps, 9 NY2d 21 [1961]; Cuyno v Cuyno, 61 NYS2d 530 [1945]).

Judiciary Law § 474 expressly exempts, from the general rule, a contingency fee agreement between an attorney and a guardian of an infant, and provides that such agreements are always “subject to the power of the court, as hereinafter provided, to fix the amount of such compensation.” Pursuant to the statute, the court “shall proceed summarily to determine the value of the services of said attorney, taking such proof from either the attorney or the guardian by affidavit, reference or the examination of witnesses before the said court, judge or surrogate, as may seem to be necessary and proper, and shall thereupon make an order determining the suitable compensation for the attorney for his services therein” (id.). Judiciary Law § 474 does not define “suitable compensation.” Further, the Legislature’s [534]*534intent concerning this procedure cannot be discerned. No bill jackets or other sources of legislative history are available for 1912, the year in which the statute was amended to expressly exempt agreements between attorneys and guardians of infants (L 1912, ch 229), and research had not revealed any subsequent legislative materials discussing the intent behind the amendment. Similarly, research has not revealed any case or treatise comprehensively analyzing the definition of the term “suitable compensation.”

However, an early case addressing the relevant amendment to Judiciary Law § 474 stated that “[t]he plain purpose of this statute is to insure court control of the amount to be received by an attorney for his services to the guardian of an infant plaintiff. The right to make a contingent agreement with the guardian by the attorney depends entirely for its validity upon the subsequent approval of the court, which is to be applied for when judgment has been obtained in favor of the guardian, or a compromise or settlement had with the defendant. The court is then to determine the value of the services rendered by the attorney, and this, of course, regardless of what agreement he and the guardian may have made. The question always remains one of the reasonable value of his services rendered, and the guardian is prohibited from paying or allowing the attorney any other or further compensation out of the estate of the infant. The contract, if any, between attorney and guardian, is required to be set forth in the petition, undoubtedly as one of the elements which the judge may take into consideration in fixing the reasonable compensation” (Matter of Jeromer, 228 App Div 123, 126-127 [1930]). Another early decision suggests that Judiciary Law § 474 was amended, “not only for the purpose of safeguarding the legal rights of infants, who are the wards of the courts, but to prevent the making of unconscionable agreements between guardians of infants and attorneys,” which were apparently then commonplace and provided for fees of up to 50% of the recovery (People v Schacht, 132 Misc 560, 562 [1928]).

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Bluebook (online)
57 A.D.3d 531, 871 N.Y.2d 170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-daimlerchrysler-corp-nyappdiv-2008.