No. 26658-- Douglas Bass v. Laura Coltelli-Rose
Davis, J., concurring in part and dissenting in part:
This Court was asked to determine whether the trial court committed error by concluding that a contingency fee contract between attorney Laura Coltelli-Rose and her clients, Mabel Bass and Douglas Bass, provided for no recovery of fees for medical payments obtained on behalf of the Basses. The majority opinion concluded that the trial court indeed committed error because such a recovery was provided for in the contract. I agree with the majority's decision that Rose was entitled to compensation under the contract for her work in recovering medical payments from Darren Weakley's insurer. I disagree, however, with the majority's decision that the contract permitted Rose to recover fees from the medical payments obtained from her clients' own insurer. Therefore, I concur in part and dissent in part to the majority's opinion.
Thus, Rose initially retained one-third ($8,333.00) of the recovery based upon the
language of her contract with the Basses.See footnote 1
Under the contract, Rose and the Basses agreed
that she would receive one-third of the recovery from whoever is liable for . . . injuries
or damages resulting from [the] accident.
The circuit court restricted the above quoted-language to mean that Rose
could recover only the fees from the person who struck the car in which Mr. Bass was
riding when he was injured. The majority opinion correctly found that such an
interpretation of the contract was wrong. In the context of the claim against Mr.
Weakley's insurer, there is no ambiguity in the contract. It is a well settled principle of
law that [w]here the terms of a contract are clear and unambiguous, they must be applied
and not construed. Syllabus point 2, Bethlehem Mines Corp. v. Haden, 153 W. Va. 721,
172 S.E.2d 126 (1969).
Weakley was the driver of the car in which Mr. Bass was a passenger when
he sustained his injuries. Neither Mr. Bass nor his mother, Mrs. Bass, owned the vehicle
driven by Weakley. While the record in this case does not disclose whether or not a
separate action was initiated against Weakley, it is clear that a potential claim was present.
In other words, Weakley was a potential adversary. In this posture, Rose's contract with
the Bass family clearly entitled her to receive one-third of any recovery obtained from
The proper construction of the language in the contract is not limited to the
term liable. The controlling language is liable for . . . injuries or damages resulting
from [the] accident. Rose contends that this language clearly shows that she contemplated
recovery of fees from monies obtained from the Basses' own insurer. No such clarity
exists. The language of the contract is ambiguous. It is also well settled that any
ambiguity in a contract must be resolved against the party who prepared it. Nisbet v.
Watson, 162 W. Va. 522, 530, 251 S.E.2d 774, 780 (1979). See Hays & Co. v. Ancro
Oil & Gas, Inc., 186 W. Va. 153, 155, 411 S.E.2d 478, 480 (1991).
I have little doubt that Rose may have contemplated recovering fees for
monies obtained from the Basses' own insurer.See footnote 3
However, such a contemplation was not
made evident in the contract. Under our case law, any ambiguity in the contract has to be
interpreted against the maker of the contract. Here, this contract maker is Rose.
Therefore, the circuit court was correct in ruling against Rose as to the portion of her fee
that resulted from monies paid by the Basses' own insurer. The majority opinion was
wrong in reversing the lower court's ruling in this regard.
For the reasons stated, I respectfully concur in part and dissent in part to the