Claim #683-440396-SUB-1 03/21/2012DANNY L. KOLHA GE
CLERK OF THE CIRCUIT COURT
DATE: April 12, 2012
TO: Peter Horton, Director
of Airports
Attn: April Pearson
FROM: Pamela G. Hancc* C.
At the March, 2012, Board of County Commissioners meeting, the Board granted
approval and authorized execution of Item C38 Pro -Rata Litigation Fee Agreements with
Lexington Insurance Company in Lexington Claim number 683 - 440396 -SUB -1 and Lexington
Claim number 683 - 431360- SUB -1.
Attached are duplicate originals of the above - mentioned for your handling. Please note
that the page that required notarization of the Mayors signature has two different dates. The
date under his signature reflects the date of the meeting and the notary reflects the date he
.signed the document. Pedro Mercado, ACA advised that this would not be a problem. Should
you have any questions, please feel free to contact our office.
cc: County Attorney w/o document
Finance
File,/
s
PRO -RATA LITIGATION FEE AGREEMENT
RE: Loss:
Insurer:
Insured:
Total Loss:
Damage to Airport's EMAS System
Lexington Insurance Company ( "Lexington ")
Monroe County B.O.C.C. ( "Monroe County ")
Total Insured Loss of Lexington:
Total Uninsured Loss of Monroe County:
Date of Loss:
Lexington Claim No.:
Our file No.:
$589,023.11
$539,023.11
$50,000.00
November 3, 2011
683 - 440396 -SUB -1
0160- 1112085
Rule 4 -1.5 of the Rules regulating the Florida Bar states several requirements of
attorneys concerning contingency fee agreements and gives to clients their rights
concerning those agreements. The attorney is required to enter into a written fee
agreement signed by the client and by an attorney for himself or for his law firm for
compensation for services rendered or to be rendered whereby his compensation is to
be dependent or contingent in whole or in part upon the successful prosecution or
settlement of an action or claim. The attorney is further required to furnish the client
with a copy of the signed contract.
This contract may be cancelled by written notification to the attorney at any time
within three (3) business days of the date the contract was signed, as shown below,
and if cancelled the client shall not be obligated to pay any fees to the attorney or
attorneys for the work performed during that time. If the attorney or attorneys have
advanced funds to others in representation of the clients, the attorney or attorneys are
entitled to be reimbursed for such amounts as they have reasonably advanced on
behalf of the clients.
Pursuant to this rule, each client also has a right to receive a closing statement
reflecting an itemization of all costs and expenses together with the amount of fee
received by each participating attorney or law firm. This closing statement shall be
executed by all participating attorneys as well as the clients, and each shall receive a
copy. Any contingency fee contract and closing statement shall be available for
inspection at reasonable times by the clients.
Page 1 of 7
Litigation Fee Agreement — Monroe County B.O.C.C. (11/3/11)
The law firm of Butler Pappas Weihmuller Katz Craig LLP (hereinafter "Butler
Pappas ") is retained by the undersigned clients as counsel to seek recovery of all
damages relative to a loss to the "EMAS" system at the Key West International Airport,
located in Key West, Florida, which occurred on November 3, 2011.
The legal fee of the law firm of Butler Pappas regarding this claim is as follows:
Recovery Amount
Prior to Suit
After Suit/Arbitration
$0-$50,000
22%
30%
$50,001 - $150,000
17%
25%
$150,001 - $300,000
15%
23%
$300,000 and above
12%
20%
The recovery of each client, respectively, will be based on a pro rata distribution
of the total recovery. Each client's recovery will be its proportionate share of
recoverable damages incurred multiplied by the actual total recovery. To date,
excluding the time value of money, the total recoverable damages are determined to be
the principal amount of Five Hundred Eighty Nine Thousand twenty -three Dollars and
11 cents ($589,023.11). Lexington has paid Five Hundred Thirty Nine Thousand
twenty -three Dollars and 11 cents ($539,023.11) to Monroe County, pursuant to its
insurance contract. In addition, Monroe County has an uninsured loss in the amount of
Fifty Thousand Dollars ($50,000.00). Thus, Lexington is entitled to 91.5% of any
recovery before attorneys fees, costs and expenses are deducted, and Monroe County
is entitled to 8.5% of any recovery before attorney's fees, costs and expenses are
deducted.
Monroe County will not be responsible for any of the costs and expenses
incurred pursuant to this Agreement, unless a recovery occurs. Lexington will be solely
responsible for the costs and expenses incurred pursuant to this agreement in the
event that no recovery occurs. Costs and expenses are monies expended by the
attorneys on behalf of their clients which include, but are not limited to, expert witness
fees, traveling expenses, discovery costs, copying costs, filing fees, and subpoena
expenses. In the event that recovery of damages does occur, Lexington and Monroe
County will each pay their respective portion of the costs and expenses incurred:
Lexington will pay 91.5% of all costs and expenses incurred; and Monroe County will
pay 8.5% of all costs and expenses incurred. In no event shall Monroe County ever
have to reimburse costs in excess of the actual amounts recovered by Monroe County
through this Agreement.
In exchange for Lexington agreeing to pay all costs and expenses incurred in the
event of no recovery, Lexington shall have total control over this litigation including, but
not limited to, the decision to file suit, the decision to proceed with certain types of
discovery, the decision to settle the matter, and the decision to proceed through a trial
Page 2 of 7
Litigation Fee Agreement — Monroe County B.O.C.C. (11/3/11)
or an appeal.
The undersigned also agree that if either Lexington or Monroe County, or Butler
Pappas at any time believe there to be conflict of interest, or potential conflict of
interest, in the continuing legal representation by Butler Pappas on behalf of Lexington,
and Monroe County, that party believing such conflict or potential of such conflict to
exist shall immediately state that belief, in writing, and express mail such written
statement to the other two parties within 48 hours of forming said belief. Upon receipt
of such written notice of conflict or potential conflict, yet consistent with all ethical and
legal constraints, Butler Pappas will immediately seek dismissal as counsel of record on
behalf of Monroe County, but will continue to represent Lexington. Butler Pappas,
however, will retain a lien for attorneys fees incurred through the date when the law firm
of Butler Pappas withdraws as counsel for Monroe County based upon any outstanding
hourly fees and costs.
If, for whatever reason, such an express delineation between the rights of
recovery and that which is recovered is not clear and a dispute between Lexington and
Monroe County is not resolved, upon written request by either Lexington and /or Monroe
County, such dispute shall be submitted to arbitration. Arbitration shall consist of a
three (3) member panel, all members of the Florida Bar. Each party shall designate
within ten (10) days a panel member of their choosing and within ten (10) days
thereafter the two chosen members shall choose a third member of the panel. At a
mutually agreeable location, within thirty (30) days of the three member panel being
selected, an arbitration hearing will be held. Although the parties may have legal
counsel present at such a hearing if they so choose, neither Butler Pappas or any
attorney or person associated with Butler Pappas will be involved in such an arbitration
procedure in any capacity whatsoever, including but not limited to rendering legal
advice. The findings of the arbitration panel shall be binding upon all parties and all
litigation costs, of any kind, as well as arbitration costs, including, but not limited to
arbitrator's fees and expenses, shall be shared pro rata between Lexington and Monroe
County based upon the total amount of monies recovered and the proportionate right of
recovery as concluded by the arbitration panel.
In the event of any court award of attorneys' fees per a court rule, statute or
contract, Butler Pappas is entitled to recover either the amount awarded by the court or
the amount determined by this litigation fee agreement, whichever is greater.
Additionally, both Butler Pappas and the undersigned clients understand and agree that
the contingent fee set forth was calculated based upon the following criteria:
(a) The time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal services properly;
(b) The likelihood, if apparent to the clients, that the acceptance of the
particular employment will preclude other employment by the lawyer;
Page 3 of 7
Litigation Fee Agreement — Monroe County B.O.C.C. (11/3/11)
(c) The fee customarily charged in the locality for similar legal services;
(d) The amount involved and the results obtained;
(e) The time limitations imposed by the clients or by the circumstances;
(f) The nature and length of the professional relationship with the clients; and
(g) The experience, reputation and ability of the lawyer(s) performing the
services.
The aforestated clients understand their rights under this Litigation Fee
Agreement, and this Agreement as described is approved and accepted by an
authorized representative of Lexington and Monroe County, respectively.
Page 4 of 7
Litigation Fee Agreement — Monroe County B.O.C.C. (11/3/11)
On behalf of Le . gton Insurance Company
PRINTED NAME: W j MadYe
DATE: VII Q �dx �, 2_O I -Z"
STATE OF C Ifs
COUNTY OF 44tP��
0
The foregoing instrument was acknowledged before me this �� day of
2012.
(Signature of Notary Public -State of ��iGYtA� t
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_P>f !° M& T�e (Nota'(y, Seal}.
(Print, Type or Stamp Commissioned Name of Notary Public)
Personally Known OR Produced Identification
Type of Identification Produced G ,( L: - ccws —
Page 5 of 7
Litigation Fee Agreement - Monroe County B.O.C.C. (1113111)
On behalf of Monr a County B.O.C.C.
PRINTED NAME: Mayor David P. Rice
DATE: March 21, 2012
STATE OF F /° -"J--
COUNTY OF M - ro t✓
The foregoing instrument was acknowledged before me this / 0 - day of
2012.
Siqnat F /. —' a. 1
(Print, Type or
PAMELA G. HANCOM
MY COMMISSION / EE 144139
EXPIRES: Febnmry 7, 2016
Bowled Thwu Notary Rft UmWw dm
Public)
Personally Known V/ OR Produced Identification
Type of Identification Produced
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Page 6 of 7
Litigation Fee Agreement — Monroe County B.O.C.C. (11/3/11)
On behalf of Y v V
BUTLER PAPPAS WEIHMULLER KATZ CRAIG LLP
PRINTED NAME:
fl0tr
DATE: - q -2 - -- — Z (Y
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this 2nvt day of
2012.
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(Print, Type o "p Cge sTioned • i *of Notary Public)
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Page 7 of 7
Litigation Fee Agreement — Monroe County B.O.C.C. (11/3/11)
Date of Loss: November 3, 2011
Lexington Claim No.: 683 - 440396 -SUB -1
STATEMENT OF CLIENT'S RIGHTS
Before you, the prospective client, arrange a contingent fee agreement with the
lawyer, you should understand this statement of your rights as a client. This statement
is not a part of the actual contract between you and your lawyer, but as a prospective
client, you should be aware of these rights:
1. There is no legal requirement that a lawyer charge a client a set fee or a
percentage of money recovered in a case. You, the client, have the right to talk with
your lawyer about the proposed fee and to bargain about the rate or percentage as in
any other contract. If you do not reach an agreement with one lawyer you may talk with
other lawyers.
2. Any contingent fee contract must be in writing, and you have three (3)
business days to reconsider the contract. You may cancel the contract without any
reason if you notify your lawyer in writing within three (3) business days; you do not owe
the lawyer a fee, although you may be responsible for the lawyer's actual costs during
that time. If your lawyer begins to represent you, your lawyer may not withdraw from
the case without giving you notice, delivering necessary papers to you, and allowing you
time to employ another lawyer. Often, your lawyer must obtain court approval before
withdrawing from a case. If you discharge your lawyer without good cause after the
three -day period, you may have to pay a fee for work the lawyer has done.
3. Before hiring a lawyer, you, the client, have the right to know about the
lawyer's education, training, and experience. If you ask, the lawyer should tell you
specifically about his or her actual experience dealing with cases similar to yours. If you
ask, the lawyer should provide information about special training or knowledge and give
you this information in writing if you request it.
4. Before signing a contingent fee contract with you, a lawyer must advise
you whether he or she intends to handle your case alone, or whether other lawyers will
be helping with the case. If your lawyer intends to refer the case to other lawyers, he or
she should tell you what kind of fee sharing arrangement will be made with the other
lawyers. If lawyers from different law firms will represent you, at least one lawyer from
each law firm must sign the contingent fee contract.
5. If your lawyer intends to refer your case to another lawyer or counsel with
other lawyers, your lawyer should tell you about that at the beginning. If your lawyer
takes the case and later decides to refer it to another lawyer, or to associate with other
lawyers, you should sign a new contract which includes the new lawyers. You, the
client, also have the right to consult with each lawyer working on your case, and each
lawyer is legally responsible to represent your interests and is legally responsible for the
acts of the other lawyers involved in the case.
6. You, the client, have the right to know in advance how you will need to pay
the expenses and the legal fees at the end of the case. If you pay a deposit in advance
for costs, you may ask reasonable questions about how the money will be or has been
spent and how much of it remains unspent. Your lawyer should give a reasonable
estimate about future necessary costs. If your lawyer agrees to lend or advance you
money to prepare or research the case, you have the right to know periodically how
much money your lawyer has spent on your behalf. You also have the right to decide,
after consulting with your lawyer, how much money is to be spent to prepare a case. If
you pay the expenses, you have the right to decide how much to spend. Your lawyer
should also inform you whether the fee will be based on the gross amount recovered or
on the amount recovered minus the costs.
7. You, the client, have the right to be told by your lawyer about possible
adverse consequences if you lose the case. Those adverse consequences might
include money which you might have to pay to your lawyer for costs and liability you
might have for attorney's fees to the other side.
8. You, the client, have the right to receive and approve a closing statement
at the end of the case before you pay any money. The statement must list all of the
financial details of the entire case, including the amount recovered, all expenses, and a
precise statement of your lawyer's fee. Until you approve the closing statement, you
need not pay any money to anyone, including your lawyer. You also have the right to
have every lawyer or law firm working on your case sign this closing statement.
9. You, the client, have the right to ask your lawyer at reasonable intervals
how the case is progressing and to have these questions answered to the best of your
lawyer's ability.
10. You, the client, have the right to make the final decision regarding
settlement of a case. Your lawyer must notify you of all offers of settlement before and
after the trial. Offers during the trial must be immediately communicated, and you
should consult with your lawyer regarding whether to accept a settlement. However,
you must make the final decision to accept or reject a settlement.
11. If at any time, you, the client, believe that your lawyer has charged an
excessive or illegal fee, you, the client, have the right to report the matter to The Florida
Bar, the agency that oversees the practice and behavior of all lawyers in Florida. For
information on how to reach The Florida Bar, call 904 - 222 -5286, or contact the local bar
association. Any disagreement between you and your lawyer about a fee can be taken
to court, and you may wish to hire another lawyer to help you resolve this disagreement.
Usually fee disputes must be handled in a separate lawsuit.
Mayor D�'P e
On ehalf of Monr a County B.O.C.C.
March 21, 2012
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