Willing v. Benz
| Docket Number: | 2005-CA-00470-COA Linked Case(s): 2005-CA-00470-COA ; 2005-CT-00470-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 11-21-2006 Opinion Author: Barnes, J. Holding: The judgment of the Leflore County Circuit Court is affirmed in part and reversed and remanded in part. |
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| Additional Case Information: |
Topic: Wrongful death - Tort Claims Act - Section 11-46-9 (1)(c) - Section 11-46-9 (1)(d) - Section 11-46-9 (1)(q) - Attorney’s fees Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Southwick, Irving, Chandler, Ishee and Roberts, JJ. Non Participating Judge(s): Griffis, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 12-08-2004 Appealed from: Leflore County Circuit Court Judge: W. Ashley Hines Disposition: CITY OF GREENWOOD’S MOTION FOR SUMMARY JUDGMENT GRANTED. ATTORNEY’S FEE AWARDED TO RICHARD BENZ. Case Number: 2002-0004CI |
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| Note: | This opinion was later modified on a motion for rehearing on 3/27/2007 by the Court of Appeals. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Joseph Erich Willing, Jr., and Jeanette Willing, Individually, and as Parent and Natural Guardian of the Minors Joseph Brandon Willing and Chadwick Mitchell Willing, and as Administratrix of the Estate of Joseph Erich Willing, Sr., Deceased |
THOMAS HENRY FREELAND |
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| Appellee: | Richard Benz, Jr., and The City of Greenwood, Mississippi | RICHARD BENZ, JR., ARNOLD F. GWIN, WILTON V. BYARS, TERRY DWAYNE LITTLE |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wrongful death - Tort Claims Act - Section 11-46-9 (1)(c) - Section 11-46-9 (1)(d) - Section 11-46-9 (1)(q) - Attorney’s fees |
| Summary of the Facts: | Joseph Willing, Sr. was killed when a vehicle driven by Sharon Simpson skidded on ice and hit him. Willing was in the process of repairing construction sign damaged in an accident apparently involving the same patch of ice. Joseph Willing, Jr. filed a complaint in the Leflore County Circuit Court as a wrongful death beneficiary of Willing, Sr. Joseph contemporaneously petitioned the Leflore County Chancery Court for letters of administration in the estate of Willing, Sr. The chancery court granted this petition and also approved the contingent fee contract between Joseph and his attorney Richard Benz, Jr. Subsequently, Jeanette Willing, widow of Willing, Sr. and guardian of their two minor children, filed a motion through separate counsel in the Leflore County Chancery Court to set aside the order granting letters of administration and approving the contingent fee contract. The court granted her motion. The contract for employment between Joseph and Benz, insofar as it may have related to any activity on behalf of Jeanette Willing or the two minor children, was ordered “set aside, canceled and held for naught” by the chancellor. Sharon Simpson filed an interpleader counterclaim asking that $100,000, the policy limits of her automobile liability insurance, be interpled into the registry of the circuit court in which the wrongful death action was pending. An agreed order was entered by the circuit court granting Simpson’s interpleader request and ordering all plaintiffs to release Simpson from further liability. The circuit court then entered an order disbursing the proceeds of the settlement funds, finding that Benz was entitled to one-third of the proceeds pursuant to the contingency fee contract signed by Joseph on behalf of the wrongful death beneficiaries of Willing, Sr. Jeanette Willing, acting through separate counsel, was allowed to intervene in the wrongful death action, and her counsel immediately moved the Leflore County Circuit Court to reconsider the disbursement order. The court denied the motion. Having received contingency fees from the Simpson settlement proceeds and at the written request of Joseph, Benz filed a motion to withdraw as counsel for Joseph. The court granted the motion. The Willings’ complaint was amended to add the City of Greenwood as a defendant. The amended complaint alleged negligence on the part of the city in failing to warn of the icy condition on the highway. The city moved for summary judgment which the court granted. The Willings appeal. |
| Summary of Opinion Analysis: | Issue 1: Sovereign immunity The Willings argue that a genuine fact issue exists as to whether the officer’s conduct with respect to the icy condition on the highway amounts to a reckless disregard for the safety of the traveling public within the meaning of section 11-46-9 (1)(c); the trial court improperly held that the city’s duty to warn in this case was discretionary as contemplated by section 11-46-9 (1)(d); and a genuine fact issue exists as to whether the accident in question was caused solely by the effect of weather conditions, precluding summary judgment pursuant to section 11-46-9 (1)(q). Reckless disregard embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act. In order to find that the officer’s conduct amounted to reckless disregard, the Willings must show facts from which a trier of fact could conclude that the patch of ice created an unreasonable risk; this risk included a high probability of harm; the officer appreciated the unreasonable risk; and the officer deliberately disregarded that risk, evincing almost a willingness that harm should follow. The Willings failed to provide sufficient proof that the officer deliberately disregarded the risk posed by the icy condition. It is undisputed that the officer notified his dispatcher with the intent that the condition be addressed by the MDOT. It is similarly without question that the dispatcher promptly notified the MDOT of the patch of ice. Unfortunately, the MDOT did not arrive on the scene until shortly after the fatal accident involving Willing, Sr. In determining whether an act or omission falls within the immunity granted by section 11-46-9 (1)(d), the relevant inquiry begins and ends with the determination of whether the conduct complained of was discretionary. To determine whether an act is a discretionary function or duty, it must first be determined whether the activity involved an element of choice or judgment. If the activity in question does involve an element of choice or judgment, then it must be determined whether the choice involved social, economic or political policy. The officer’s actions with regard to the icy condition on the highway involved an element of choice or judgment. As such, the decision to promptly notify the MDOT of the icy condition rather than remaining at the scene after the first accident was discretionary and not ministerial. Neither party addressed whether the choice involved social, economic or political policy in their summary judgment briefs before the trial court nor do they address it on appeal. Consequently, the trial judge did not have the opportunity to apply that test to the facts of this case. The Willings also argue that a genuine issue exists regarding whether the fatal accident which claimed the life of Willing, Sr. was caused solely by the effect of weather conditions on the use of Highway 82. Because the Willings do not point to any evidence that the officer or the City of Greenwood contributed to or were otherwise responsible for the formation of the patch of ice, summary judgment was appropriate as to this immunity under section 11-46-9 (1)(q). Where any of the immunities enumerated in section 11-46-9 (1) apply, the government is completely immune from any claims arising from the act or omission complained of. Therefore, the court properly granted summary judgment. Issue 2: Attorney’s fees The Willings argues that the court erred by awarding a one-third contingency fee to Benz out of the settlement proceeds attributable to Jeanette Willing and her two minor children. Jeanette Willing retained separate counsel to represent her interests individually as beneficiary, as personal representative of Willing, Sr.’s estate, and as guardian of her two minor children. There is no evidence in the record that Jeanette gave informed written consent to the representation and fee arrangement between Joseph and Benz. Accordingly, Benz was entitled to contingency fees based on the Joseph-Benz contract only with respect to Joseph’s portion of the proceeds. Regarding the remainder of the proceeds, an attorney who successfully prosecutes a wrongful death claim without representing all of the heirs must prove that he has earned a fee from the proceeds distributed to all of the heirs. The Willings concede that Benz was entitled to fees based on quantum meruit with respect to proceeds attributable to the estate, Jeanette Willing, and the two minor children. The amount of the proceeds attributable to the estate was deducted prior to the calculation of contingency fees that were ultimately awarded to Benz. Therefore, Benz did not receive any fees from the estate’s share of the proceeds. Since Benz did not assert a claim to fees from the estate’s share of the proceeds at trial, the court need not make a determination on remand to his quantum meruit entitlement thereto. The case is remanded to the circuit court with instructions that an evidentiary hearing be held to determine the amount of attorney’s fees to which Richard Benz, Jr. is entitled based on quantum meruit. The circuit court’s determination should also be contingent upon approval by the Chancery Court of Grenada County of attorney’s fees from the proceeds attributable to the two minor Willings. |
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