D. Michael Burke, Esq.|
Burke & Schultz
Martinsburg, West Virginia
Attorneys for Appellee
Cynthia S. Gustke, Esq.|
Elkins, West Virginia
Attorney for Appellant
1. A valid written instrument which expresses the intent of the parties in
plain and unambiguous language is not subject to judicial construction or interpretation but
will be applied and enforced according to such intent. Syl. pt. 1, Cotiga Dev. Co. v. United
Fuel Gas Co., 147 W. Va. 484, 128 S.E.2d 626 (1962).
2. Where the terms of a contract are clear and unambiguous, they must
be applied and not construed. Syl. pt. 2, Orteza v. Monongalia County Gen. Hosp., 173
W. Va. 461, 318 S.E.2d 40 (1984).
3. 'It is the safest and best mode of construction to give words, free from ambiguity, their plain and ordinary meaning.' Williams v. South Penn Oil Co., 52 W. Va. 181, 43 S.E. 214 (1902), Syllabus Point 4. Syl. pt. 3, Bennett v. Dove, 166 W. Va. 772, 774, 277 S.E.2d 617, 619 (1981).
Appellant Laura Coltelli-Rose (Rose), defendant below, appeals the January
28, 1999 final order of the Circuit Court of Berkeley County, which granted summary
judgment in favor of appellee Douglas Bass, plaintiff below, on his claim that Rose had
improperly charged a continent fee on recoveries obtained under the medical payments
coverage of two separate automobile insurance policies. The circuit court ruled that the
recovery of such insurance proceeds was not within the terms of the contracts between Rose
and Mr. Bass. We reverse, concluding that such recoveries were contemplated by the
provisions of the contracts.
Rose's representation of the Basses resulted in recoveries from several
different sources. Initially, Rose sought and obtained reimbursements for Douglas Bass's
medical bills under the medical payments coverage of Weakley's automobile insurance
policy with State Farm Insurance Company, up to the policy's $25,000 limit. Rose deducted
her one-third contingent fee from these proceeds ($8,333.33), and remitted the remaining
amounts to Mrs. Bass. Mabel Bass was aware of this procedure, and initially lodged no
In August 1991, the liability portion of Douglas Bass's claim was resolved
through a negotiated settlement. Dunham's liability insurance carrier agreed to pay
$200,000, with Rose also obtaining $60,000 under Mrs. Bass's underinsured motorist
coverage with State Farm. Douglas Bass had turned eighteen on June 18, 1991, and thus was
paid these sums directly. Rose likewise imposed a one-third contingent fee on this recovery,
which has never been disputed.
At some point after the liability settlement in August, 1991, the relationship
between Mrs. Bass and her son became strained. Because she perceived a conflict of interest
in representing both of them, Rose ceased representing Mrs. Bass, who was subsequently left
out of a new contingent fee agreement with Douglas Bass executed on September 28, 1992.See footnote 1
Rose had for some time been seeking additional reimbursement for medical
expenses under the medical payments coverage of Mrs. Bass's own insurance policy with
State Farm. State Farm initially declined to stack medical coverage payments; however, in
August 1992, Rose secured payment of $21,666.52, which was paid to Douglas Bass directly.
Rose again took one-third of the recovery, or $7,221.17, as her contingent fee.
Mrs. Bass had previously sought and obtained new counsel in April, 1992, who
subsequently demanded that Rose refund the one-third contingent fee she took from the
$25,000 medical payment benefit on the Weakley vehicle. At the apparent suggestion of
ethics counsel for the West Virginia State Bar, Rose reduced her fee from one-third to
one-fourth of the first $25,000 medical payment benefit. She paid this refund ($2,083.33)
directly to Douglas Bass. However, the matter was not resolved, and on January 15, 1993,
Mrs. Bass filed this action against Rose and Douglas Bass. An amended complaint was filed
on April 15, 1993, where Douglas Bass became the party plaintiff. On November 9, 1993,
the circuit court granted the defendants' motion for summary judgment. The court later,
however, rescinded its initial order, and attempted to certify various questions to this Court.
Review was initially granted, but this Court later dismissed the matter, concluding that the
issues raised were not factually developed so as to permit adjudication of the certified
questions. See Bass v. Coltelli, 192 W. Va. 516, 453 S.E.2d 350 (1994).
The circuit court subsequently granted summary judgment to Douglas Bass on
January 28, 1999, concluding that [t]he contingent fees charged by [Rose] on the medical
payment recoveries were not covered by the contingent fee contract entered into by either
Mabel Bass or Douglas Bass . . . . The rationale behind this conclusion was as follows:
It is the court's opinion that these two contingent fee contracts . . . entered into between the parties were related to and dealt with a tort claim which Mabel and Douglas Bass had against Cary Dunham, or whoever caused . . . the injuries Douglas Bass received in the accident described in the contract, and did not cover, under their terms, any moneys which would be payable under any contract of insurance, except insurance carried by Cary Dunham, or which covered the operation of his vehicle at the time he caused the accident.
The court ordered Rose to refund $13,472.17 in contingent fees previously retained, less a quantum meruit fee for her services. It is from this order that Rose now appeals.
The court below determined that the contract in question was not ambiguous.
As we stated in Fraternal Order of Police, Lodge No. 69 v. City of Fairmont, 196 W. Va. 97,
468 S.E.2d 712 (1996), it is for a trial court to determine whether the terms of an integrated
agreement are unambiguous and, if so, to construe the contract according to its plain
eaning. Id. at 100, 468 S.E.2d at 715. A valid written instrument which expresses the
intent of the parties in plain and unambiguous language is not subject to judicial construction
or interpretation but will be applied and enforced according to such intent. Syl. pt. 1, Cotiga
Dev. Co. v. United Fuel Gas Co., 147 W. Va. 484, 128 S.E.2d 626 (1962). See also syl. pt. 2,
Orteza v. Monongalia County Gen. Hosp., 173 W. Va. 461, 318 S.E.2d 40 (1984) (Where
the terms of a contract are clear and unambiguous, they must be applied and not construed.).
We undertake plenary review of a lower court's facial interpretation of a written agreement.
See Fraternal Order of Police, 196 W. Va. at 100, 468 S.E.2d at 715; Williams v. Precision
Coil, Inc., 194 W. Va. 52, 64 n.23, 459 S.E.2d 329, 342 n.23 (1995).See footnote 3
In this case, the circuit court interpreted the pertinent contract language, claim
against . . . whoever is liable for . . . injuries or damages resulting from [the] accident, as
referring only to those parties who may be liable in tort for the injuries sustained by the
client, Douglas Bass. We do not read this language as restricting Rose's compensable
services to obtaining recovery only from wrongdoers. This Court has consistently
emphasized that '[i]t is the safest and best mode of construction to give words, free from
ambiguity, their plain and ordinary meaning.' Syl. pt. 3, Bennett v. Dove, 166 W. Va. 772,
774, 277 S.E.2d 617, 619 (1981) (quoting syl. pt. 4, Williams v. South Penn Oil Co., 52
W. Va. 181, 43 S.E. 214 (1902)). See also Nisbet v. Watson, 162 W. Va. 522, 530, 251
S.E.2d 774, 780 (1979) (the language of a contract must be accorded its plain meaning.).
As this Court long ago recognized, the term liable has expansive meaning,
which encompasses a party being 'bound or obliged in law or equity'; 'responsible,
answerable, or compellable to make satisfaction, compensation, or restitution'; 'obligated';
'accountable for or chargeable with,' 'as liable for money.' Wilhelm v. Parkersburg, M. &
I. Ry. Co., 74 W. Va. 678, 683, 82 S.E. 1089, 1091 (1914) (citations omitted). See also
Black's Law Dictionary 915 (6th ed. 1990). Other courts have likewise given this term broad
meaning. In National Sur. Corp. v. Michigan Fire & Marine Ins. Co., 59 F. Supp. 493 (D.
Minn. 1944), aff'd, 156 F.2d 329 (8th Cir. 1946), a grain warehouser had obtained a fire
insurance policy providing coverage for damage to, among other things, merchandise held
in trust, so long as the warehouser was liable therefor. Id. at 494. When a portion of the
grain that the warehouser was storing as bailee was subsequently destroyed by fire, the
insurer refused to indemnify, asserting that word liable as contained in the policy referred
only to tort liability, to the exclusion of any contractual obligation. The court in National
Surety rejected this argument, noting that [t]he general word 'liable' does not indicate of
itself upon what the insured's liability must be predicated upon. Id. at 495. The use of this
term in the present fee contract is no more restrictive.
Rather than limiting the application of Rose's contingent fee to recoveries obtained from third-party tortfeasors, we interpret the plain wording of the provision in question to encompass any recovery secured from a party who is legally obligated to compensate Douglas Bass for the losses occasioned by the car accident in which he was involved. We therefore hold that the circuit court erred in ruling to the contrary.See footnote 4 4
Reversed and remanded.
[W]hen a trial court's answers rest not on plain meaning but on
differential findings by a trier of fact, derived from extrinsic
evidence as to the parties' intent with regard to an uncertain
contractual provision, appellate review proceeds under the
clearly erroneous standard. The same standard pertains
whenever a trial court decides factual matters that are essential
to ascertaining the parties' rights in a particular situation (though
not dependent on the meaning of the contractual terms per se).
In these types of cases, the issues are ordinarily fact-dominated
rather than law-dominated and, to that extent, the trial court's
resolution of them is entitled to deference.
Fraternal Order of Police, 196 W. Va. at 100, 468 S.E.2d at 715 (footnote omitted).