Malonis v. Harrington

816 N.E.2d 115 (2004)

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Nature of the Case

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Facts

Loiselle suffered injuries on April 26, 1991, in a motor vehicle accident. The operator of the other vehicle was an employee of Browning-Ferris Industries, Inc. (BFI). Loiselle retained P to represent him in a personal injury action against BFI for a contingent fee of one-third the amount of any recovery. P went to work. BFI made a settlement offer of $7,500, which Loiselle rejected. D prepared and sent a G. L. c. 93A demand letter to BFI, and got a settlement offer of $30,000 (including the PIP benefits already paid). This offer also was rejected by Loiselle. P filed a complaint against BFI on Loiselle's behalf. Written discovery was exchanged, and Loiselle was deposed and underwent an independent medical examination. Loiselle still complained of back pain. In April 1994, Loiselle was examined by an orthopedic surgeon, who recommended disc surgery. As a consequence of receiving the report, BFI decided to increase its settlement offer to $57,500, although it did not communicate that offer to P. Settlement discussions that continued between $60,000-$80,000 range, but no agreement was reached. On September 14, 1994, Loiselle discharged P and engaged D under a contingent fee agreement calling for one-third of the gross amount of the recovery. As requested, P forwarded his case file to D. P gave written notice to Loiselle, D, and BFI, that he would seek to establish an attorney's lien. D sent P four written requests for an itemized bill for his legal services performed for Loiselle with respect to the BFI case. On March 23, Loiselle himself sent a written demand for P 'to submit a full and complete invoicing of your fees due you.' BFI offered $57,500, and the case settled. D assured BFI's counsel that he 'would take care of P.' D retained $17,500 as a legal fee. P send a bill for $11,355.80. D viewed this amount as 'ridiculous.' P offered to submit the dispute to fee arbitration, but D refused. P filed a complaint. The District Court judge concluded that D was under no obligation to share any part of his fee with P and awarded no damages. The Appellate Division affirmed. The case was submitted to the judge in the Superior Court. The judge concluded in a written memorandum that D was liable to P and entered judgment accordingly. D appealed.