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People v. Fulton6/12/2003
te the fees to one category of damages over the other. The trial judge further expressed familiarity with the manner in which insurance companies evaluate personal injury actions, and was well aware that the total value of a case is typically driven by the amount of the economic damages the plaintiff's attorney can substantiate, with the non-economic damages commonly set at a multiple of the economic damages.
On this record, we conclude the trial court did not err in refusing to reduce the amount of attorney fees incurred because some portion of those fees was also incurred to obtain non-economic pain and suffering damages.
III. Reasonableness of Fees
Fulton alternatively contends the attorney fees Overton incurred were not reasonable because it was not necessary for Overton to hire an attorney or to file a lawsuit to recover the $100,000 settlement. In support of this contention, Fulton maintains that liability was clear, there was little dispute over the amount of economic damages and early on Wawanesa was ready to settle the case for $70,000, an amount he claims was five times the economic damages. Fulton also contends that it was at his urging that Wawanesa paid Overton the policy limit of $100,000. Hence, he claims he is being punished for assisting the victim.
Contrary to Fulton's contentions, Overton was fully justified in retaining counsel and filing a personal injury action. An injured party acts reasonably in retaining the services of an attorney to assist in the recovery of damages sustained as a result of an automobile accident caused by a defendant's criminal conduct. Hiring an attorney on a contingency basis is a standard practice in a personal injury case, and a fee based on 25 percent of the total damages recovered is well within the acceptable range of contingency fees. (See Sommers v. Erb (1992) 2 Cal.App.4th 1644, 1651.) In fact, it is common for contingent fees to exceed this percentage.
Further, although liability was not disputed, economic damages were, and even Fulton's counsel doubted Wawanesa would ever offer policy limits in this case. Based on the documents presented and representations made at the sentencing and restitution hearings, it was clear Wawanesa doubted the seriousness of Overton's physical injuries, questioned the need for further surgery and would not seriously consider Overton's policy limit settlement demand until these issues were resolved. Because the value of the settlement was necessarily dependent on proof concerning the nature and extent of Overton's physical injuries and the attendant medical expenses and lost wages, Savaglio's efforts necessarily concentrated on establishing the validity of these economic damages.
It was only after Overton's counsel filed a lawsuit, preliminary discovery was complete and a defense independent medical examination confirmed the need for future shoulder surgery that Savaglio was able to achieve the $100,000 settlement. Savaglio informed the trial court that to accomplish this, she expended 135 hours at the rate of $175 per hour and that her paralegal spent 50 hours at the rate of $50 per hour, a total of $26,125.
In view of Overton's serious injuries and the fact they were caused by Fulton, who was driving with a blood-alcohol level of 0.16 percent when he crashed head-on into Overton's car, it was reasonable for Overton to reject the $70,000 offer and seek nothing short of the $100,000 policy limit in settlement of the matter. From the documents submitted, the trial court had ample basis to conclude that Wawanesa was not willing to pay Overton the $100,000 until his attorney filed and prosecuted the lawsuit and substantiated Overton's injuries.
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