JAMES L. FOX and RHONDA S. FOX, husband and wife, Plaintiffs,
RC FABRICATORS, INC. Defendant.
Submitted: September 18, 2013
Defendant's Motion for Summary Judgment – DENIED Plaintiffs' Cross-Motion for Partial Summary Judgment – GRANTED
Timothy F. Devereux, Esquire, Ladendorf & Ladendorf, Attorney for Plaintiffs.
Gary S. Nitsche, Esquire, Kiadii S. Harmon, Esquire, Weik, Nitsche & Dougherty, Attorneys for Plaintiffs.
Daniel L. McKenty, Esquire, Katherine L. Hemming, Esquire, Heckler & Frabizzio, Attorneys for Defendant.
William C. Carpenter, Jr. Judge
Before this Court is Defendant's Motion for Summary Judgment and Plaintiffs' Cross-Motion for Partial Summary Judgment. At issue is whether Plaintiffs' claim is barred because Plaintiffs' prior attorney, William Conour ("Conour") entered into a settlement agreement with Defendant and Defendant paid the agreed upon settlement amount. Although this issue appears to be standard accord and satisfaction, it is complicated by Conour's later admissions that: (1) the settlement was not approved by Plaintiffs; (2) the Plaintiffs' signatures thereto were forged; and (3) Conour never disbursed the funds to Plaintiffs.
For the foregoing reasons, the Court finds the settlement is not binding upon the Plaintiffs and the Defendant's Motion for Summary Judgment is hereby DENIED. Plaintiffs' Cross-Motion for Summary Judgment, seeking a determination that the settlement is not binding upon them, is hereby GRANTED.
Plaintiff James Fox ("Fox") was injured on or about July 17, 2010, while working at a construction site in Wilmington, Delaware. Plaintiffs allege that these injuries are attributable to Defendant, arguing that a crane operated by employees of Defendant dropped a steel diagonal brace weighing approximately 370 pounds, which struck Fox. Plaintiffs claim the incident resulted in crush-like injuries to Fox's left leg and neck, necessitating numerous surgical procedures and medical care, and seek reimbursement for such.
Following this injury, Plaintiffs retained the law firm of Conour Devereux Hammond to represent them in connection with the personal injury claim. Plaintiffs signed a retainer agreement with the firm on or about August 10, 2010, setting forth the relationship and authority granted to the firm (the "Retainer"). Beginning in November 2010, the firm engaged in settlement negotiations with Defendant and their liability insurer and had numerous communications through email, letter, phone, and facsimile.
Conour's involvement in the settlement negotiations began on or around September 2, 2011 and continued until October 6, 2011. On October 6, 2011, Conour agreed to resolve the claims on Plaintiffs' behalf for $450, 000. Conour represented to Defendant that Plaintiffs agreed to the settlement and executed and forwarded a Release and Indemnification Agreement (the "Release") to Defendant's insurer. The Release stated that Plaintiffs released and forever discharged Defendant and their insurer for all claims arising from the July 17, 2010 incident in exchange for a payment of $450, 000. Pursuant to the agreement, Defendant and/or their insurer issued a payment for $450, 000 on October 7, 2011, to "Jim Fox & Conour, Devereux, Hammond Attnys, " which was endorsed and deposited into the IOLTA account for Conour Devereux Hammond on October 10, 2011.It is unclear what became of these specific funds but what is clear is that Conour never disbursed them to Plaintiffs.
Plaintiffs learned of the settlement between Conour and Defendant on February 24, 2012. Believing they were the victims of fraud, Plaintiffs then contacted the Federal Bureau of Investigation. Shortly thereafter, on April 27, 2012, a federal criminal complaint and supporting affidavit were filed against Conour in the U.S. District Court for the Southern District of Indiana. The criminal complaint summarized Conour's actions arising from his relationship with the parties to this suit as:
The defendant [Conour] devised a scheme to defraud, and to obtain money by means of materially false statements and fraudulent pretenses from, clients of his legal practice and others, and on October 8, 2011 for the purpose of executing the scheme, the defendant caused to be transmitted by means of wire communication in interstate commerce a facsimile transmission from ...