Travis Abadie v. Maxfield T. Carvana.

C.A. No. 05C-06-006-RFS.Superior Court of Delaware, Sussex County.
November 2, 2007.

Michael I. Silverman, Esquire, Silverman McDonald, Wilmington, DE.

Jeffrey A. Young, Esquire, Young and McNelis Dover, Delaware.

David L. Finger, Esquire, Finger Slanina, LLC, Wilmington, DE.


Dear Counsel:

Plaintiff, Travis Abadie, was severely injured in a car accident. Defendant, Maxfield Carvana, recklessly drove it off the road. The case was scheduled for trial on Monday, July 30, 2007. However, the parties settled, and a stipulation of dismissal with prejudice was filed on August 22, 2007 which closed the case.

Initially, Plaintiff was represented by former counsel who filed the complaint on June 6, 2005. On August 2, 2006 new counsel assumed responsibility for the case. At that time, Defendant had offered to settle the case for two hundred and fifty thousand dollars ($250,000). There was a falling out between Plaintiff and his former counsel which precipitated the change.

Thereafter, former counsel retained Mr. Finger who moved to intervene to assert a charging lien for attorneys fees due before the substitution. The motion to intervene was filed on September 12, 2007. Subsequently, a hearing was held on October 23, 2007.

Information from the hearing revealed that the settlement proceeds were distributed before September 12th, and, technically, there is no fund to impress a lien. However, present counsel represented that a sum of money equivalent to the claim could be paid into Court, which

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is believed to be seventy thousand dollars ($70,000).

As Mr. Finger shared, there is precedent for the Court to adjust fee disputes between different sets of lawyers in tort litigation, see Webb v. Harleysville Ins. Co., 1995 WL 716757 (Del.Super. Oct. 23, 1995). There, a motion to intervene to assert a charging lien was filed almost two (2) years before trial. The insurance company paid a percentage of the judgment into Court as required by a prior order. The Court then determined whether there was just cause to terminate former counsel (in which case no fee could be due) or, if not, what a reasonable fee would be based on a quantum merit basis. Ultimately, the Court awarded $13,200.25 from the money that had been deposited into Court.

It is true that intervention may occur after a case is closed for a proper collateral purpose. The following cases cited by Mr. Finger reflect this point where a protective order is modified either to provide material of public interest or to permit discovery of sealed information for litigants pressing identical claims in other litigation see United Nuclear Corp. v. Crawford Inc. Co., 905 F.2d 1424
(10th Cir. 1990); Diversified Group, Inc. v. Dangerdas, 217 F.R.D. 152 (S.D. N.Y. 2003).

On the other hand, a motion to intervene after judgment should be denied absent exceptional circumstances, see Haymond v. Lundy, 205 F.Supp.2d 390 (E.D.Pa. 2002). Several factors may guide the Court’s determination, viz; (1) the length of time the movant knew or should have known of the interest before making the motion, (2) prejudice to existing parties resulting from the applicant’s delay, (3) prejudice to the movant if the motion is denied, and (4) the presence of unusual circumstances militating for or against a finding of timeliness, see E.E.O.C. v. Rekrem, Inc., 199 F.R.D. 526 (S.D.N.Y. 2001).

In this regard, former counsel had reason to know that Plaintiff was dissatisfied. The likelihood of a fee dispute arose no later than the time of substitution on August 10, 2006. There is an obvious parting of the ways about the adequacy of the settlement offer. The motion should have been filed then similar to the filing in Harleysville which occurred well before the trial date. Waiting thirteen (13) months to file a motion is too long. The settlement money has been spent, and the proverbial train has left the station despite the belated willingness to pay some but not all of the proceeds. There is prejudice to the existing parties by way of inconvenience in having to deal with financial differences between a former client and discharged law firms. Parties are entitled to finality in litigation. There is no prejudice to former counsel as an independent civil action can be filed. The serious allegations about Plaintiff’s just cause to fire his lawyers amount to unusual circumstances weighing against intervention. As the underlying suit between Plaintiff and Defendant is not alive, there would be no discovery on disputed, critical points. The differences are more severe than the circumstances present in the Harleysville situation. The nature of these claims are more appropriately considered through discovery, trial or alternative dispute resolution proceedings under Superior Court Civil Rule 16.1 in an independent civil action.

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Finally, I agree with the statement expressed in Defendant’s letter of October 24, 2007 opposing the motion. At this juncture, the division of attorneys fees has nothing to do with the settled tort claim between Plaintiff and Defendant. In the post judgment context, under the circumstances of this case, the subject is too much of a stretch for Rule 24, the parties and the Court.

Considering the foregoing, the motion to intervene is denied.


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