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RUFOLO EX REL. ROSSIELLO v. MIDWEST MARINE CONTR.

September 26, 1995

JAMES P. RUFOLO for the use of ERNEST T. ROSSIELLO, assignee, Judgment-Creditor,
v.
MIDWEST MARINE CONTRACTOR, INC., a corporation, Judgment-Debtor, and MUTUAL MARINE OFFICE OF THE MIDWEST, INC., Insurance Carrier, Citation Respondent.



The opinion of the court was delivered by: ROSEMOND

TO: The Honorable George M. Marovich

 United States District Judge

 REPORT AND RECOMMENDATION

 W. Thomas Rosemond, Jr., Magistrate Judge:

 Before the Court is the "Motion For Order Compelling Insurance Carrier To Turn Over Partial Insurance Proceeds To Satisfy Assignee's Interest In Judgment And Motion To Enforce Attorney's Lien For Expenses Of Litigation Advanced." The motion, which is in essence for attorneys' fees and costs, is granted in part and denied in part.

 BACKGROUND.

 The underlying action was predicated on the Jones Act and on unseaworthiness claims under general maritime law. The plaintiff, James Rufolo, a shipping pilot, slipped and fell and injured his back on the oil-slicked stairway of a barge named the M/V Shoreline II. Rufolo sued Midwest Marine Contractor, Inc., the barge's charterer, and Service Welding & Shipbuilding, Inc., a firm whose arguably negligent repair work on the vessel may have caused the oil to collect on the stairs. *fn1"

 Midwest Marine brought a cross-claim against Service Welding for indemnification and contribution. The claim was denied by the District Judge.

 A jury found that the M/V Shoreline II was unseaworthy and that Midwest Marine was negligent. It awarded Rufolo $ 375,000 in damages, which was reduced to $ 251,000 because Rufolo was found to have been 33 percent negligent. *fn2"

 Before trial, Rufolo and Service Welding agreed to settle for $ 1,000.00. Pursuant to the trial court's rulings, this settlement excused the ship repair outfit from liability.

 After trial, an appeal was taken by Midwest Marine seeking a path to indemnification from Service Welding by challenging, among other things, the "bona fideness " of the $ 1,000.00 settlement. The appeals court found "no evidence of bad faith in that settlement." *fn3" The case was affirmed by the United States Court of Appeals for the Seventh Circuit. *fn4"

 Subsequently, the United States Supreme Court granted Midwest Marine's petition for writ of certiorari. Upon review, the Supreme Court vacated the judgment, and remanded the case to the United States Court of Appeals for the Seventh Circuit for further consideration in light of certain pertinent and recently issued Supreme Court decisions.

 The majority opinion of the United States Court of Appeals for the Seventh Circuit had applied the settlement bar contribution system to the Rufolo appeal, whereas recent enunciations of maritime law by the United States Supreme Court had all adopted the "proportionate share" rule which obviated the need for contribution actions. Accordingly, in light of the Supreme Court's recent articulations of maritime law, the United States Court of Appeals for the Seventh Circuit remanded the case to the District Judge to apply the proportionate share rule as recently adopted by the Supreme Court. *fn5" The District Court reheard the case on December 2, 1994. On January 10, 1995, judgment was finally entered in favor of plaintiff James P. Rufolo in the following amounts: Judgment on liability $127,500.00 costs Costs taxed $3138.40 Maintenance and cure $26,455 (insurer deduction of $5,000 subtracted) Pre-judgment interest $32,326.11. TOTAL $189,419.51

 Mutual Marine, as insurer, deposited funds in the court's registry in the amount of $ 162,964.51, including costs and prejudgment interest.

 Central to this fee dispute are three contingent fee agreements between attorney, Ernest T. Rossiello, and his former client, plaintiff James P. Rufolo. The original contingency fee agreement was signed on October 16, 1989. This agreement outlines that Rossiello would be paid 33.3% of any sums ...


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