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Benn v. Liberty Mutual Fire Insurance Co.

June 23, 2010

PAUL M. BENN, PLAINTIFF,
v.
LIBERTY MUTUAL FIRE INSURANCE COMPANY, DEFENDANT/THIRD-PARTY PLAINTIFF,
v.
L. BRUCE HOFFMAN, GARCES & GRABLER, P.C. AND GEORGE CARR, THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Robert F. Kelly, Sr. J.

MEMORANDUM

Presently before the Court are: (1) a Motion for Summary Judgment filed by Defendant/Third-Party Plaintiff Liberty Mutual Fire Insurance Company ("Liberty Mutual"); (2) a Motion for Summary Judgment filed by Third-Party Defendant L. Bruce Hoffman, Esquire ("Hoffman"); (3) a Motion for Summary Judgment filed by Third-Party Defendant Garces & Grabler, P.C. ("Garces & Grabler"); and (4) a Motion for Summary Judgment filed by Third-Party Defendant George Carr ("Carr"). For the reasons set forth below, Liberty Mutual's Motion will be granted and the remaining Motions will be denied as moot.

I. FACTS*fn1

On June 11, 2009, Plaintiff Paul M. Benn, Esquire ("Benn") filed a Complaint in the Court of Common Pleas of Philadelphia County against Liberty Mutual seeking to recover a "referral fee" arising out of Benn's representation of Carr in a personal injury action (the "Carr Case"). On July 2, 2009, Benn's action was removed to this Court on the basis of diversity jurisdiction.

Benn's Complaint alleges that Benn was retained by Carr to provide representation in the Carr Case and that Carr executed a contingency fee agreement providing a one-third fee to Benn. (Pl.'s Compl. ¶ 5.) Through his representation of Carr, Benn "identified the potentially responsible parties to include Dan Lepore and Sons Company as a defendant." (Id. ¶ 6.) Dan Lepore and Sons Company was insured by Liberty Mutual. (Id.) Liberty Mutual was aware of Benn's representation of Carr and assigned a Senior Technical Claims Specialist, Betty Anne D'Angelo ("D'Angelo"), to monitor and adjust Carr's claim. (Id. ¶ 7.)

Sometime thereafter, Carr decided to discharge Benn as his lawyer and engaged Hoffman to represent him. Benn and Hoffman finalized an agreement which called for Benn's receipt of a one-third referral fee at the conclusion of the Carr Case. (Id. ¶ 8.) By letter dated November 30, 2004, Benn notified Liberty Mutual of his continued interest in the Carr Case. (Id. ¶ 9.) On October 26, 2005, D'Angelo acknowledged Benn's continuing interest in the Carr Case. (Id. ¶ 10.) Without receiving any consideration in return, D'Angelo agreed in writing to place Benn's name on any drafts issued in settlement. (Id.) "The obvious intent of this writing was to protect the referral fee of the plaintiff, Mr. Benn." (Id.)

On May 1, 2006, Benn signed a General Release which stated in part: PAUL MICHAEL BENN, . . . (hereinafter referred to as the "Releasor"), . . . in consideration of the sum of Six Thousand Six Hundred Sixty-Six Dollars and Sixty-Six Cents . . . received from or on behalf of L. Bruce Hoffman, Esquire (hereinafter referred to as "Releasee"), . . . does hereby remise, release, acquit, satisfy, and forever discharge the said Releasee, of and from all manner of actions, causes of action, suits, debts, covenants, contracts, controversies, agreements, promises, claims and demands whatsoever, including the claims for referral fees, which said Releasor ever had, now has, or which any personal representative, successor, . . . shall or may have, against said Releasee, by reason of any matter, cause or thing whatsoever, from the beginning of time to the date of this instrument. (Liberty Mutual's Mot. Summ. J., Ex. C at 1.) In his Responses to the Motions for Summary Judgment, Benn asserts that this General Release was executed as part of the settlement of a single case involving a plaintiff named Thomas Lynch ("Lynch") and does not affect his right to a referral fee in the Carr Case.*fn2 (Pl.'s Mem. Supp. Resp. Liberty Mutual's Mot. Summ. J. at unnumbered pages 1-2; Pl.'s Resp. Hoffman's Mot. Summ. J. at unnumbered pages 1-3.) Benn further alleges that "[a]t the time of the release, . . . Benn . . . had no viable claim against . . . Hoffman[]. . . relevant to the Carr case." (Pl.'s Resp. Hoffman's Mot. Summ. J. at unnumbered page 2.)

Ultimately, the Carr Case settled while Carr was represented by the law firm of Garces & Grabler. In its Response to the Motions for Summary Judgment filed by Liberty Mutual and Hoffman, Garces & Grabler states: "Hoffman was paid a one-third fee of $195,971.26. . . . If Hoffman loses on his defense of a general release and prevail[s] on his summary judgment motion against Garces & Grabler, P.C., Hoffman would be unjustly enriched one-third of $195,971.26, namely $65,323.75 that he would have otherwise paid to Benn." (Garces & Grabler's Resp. Mots. Summ. J. at unnumbered page 2 (emphasis in original).)

The sole basis for recovery in Benn's Complaint is a claim for promissory estoppel premised on the alleged agreement between Liberty Mutual and Benn to include Benn's name on the settlement draft if and when the Carr Case settled. (Pl.'s Compl. ¶¶ 12-14.) Benn asserts that "[b]y ignoring the promise . . . [Liberty Mutual] caused a severe injustice to occur and resulted in the loss of $163,888.89 to the plaintiff as the plaintiff was not paid a referral fee[,] all to his financial detriment." (Id. ¶ 12.)

On July 24, 2009, Liberty Mutual filed a Third-Party Complaint seeking contribution and/or indemnity from Hoffman, Garces & Grabler and Carr. On April 15, 2010, Hoffman filed his Motion for Summary Judgment regarding Liberty Mutual's claim for contribution and/or indemnity. On April 19, 2010, Liberty Mutual filed its Motion for Summary Judgment regarding Benn's claim for promissory estoppel. Also on April 19, 2010, Garces & Grabler filed its Motion for Summary Judgment regarding Liberty Mutual's claim for contribution and/or indemnity. Finally, on April 20, 2010, Carr filed his Motion for Summary Judgment regarding Liberty Mutual's claim for contribution and/or indemnity.

II. STANDARD OF REVIEW

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper if "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The moving party has the initial burden of informing the Court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson, 477 U.S. at 249. A factual dispute is material only if it might affect the outcome of the suit under governing law. Id. at 248.

To defeat summary judgment, the non-moving party cannot rest on the pleadings, but rather, that party must go beyond the pleadings and present "specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). Similarly, the non-moving party cannot rely on unsupported assertions, conclusory allegations or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Celotex, 477 U.S. at 325). Further, the non-moving party has the burden of producing evidence to establish prima facie each element of its claim. Celotex, 477 U.S. at 322-23. If the Court, in viewing all reasonable inferences in favor of the non-moving ...


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