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November 14, 1995

JAMES P. RUFOLO, for the use of ERNEST T. ROSSIELLO, assignee, Judgment-Creditor,
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: MAROVICH


 On February 23, 1995, attorney Ernest T. Rossiello filed with this Court a "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." In essence, Rossiello seeks attorneys' fees and costs owed to him by his former client, James P. Rufolo, as the result of Rossiello's successful representation of Rufolo, both at trial and on appeal, in an action predicated on the Jones Act and on general maritime law.

 Central to this fee dispute are three contingent fee agreements between Rossiello and Rufolo. The first of these agreements--under which Rossiello is entitled to 33.3% of any sums obtained or recovered by suit or settlement--was signed at or near the creation of Rossiello's and Rufolo's attorney-client relationship. The second agreement--under which Rossiello is entitled to 40% of any sums recovered--and third agreement--under which Rossiello is entitled to 50% of any sums obtained--were both entered into after Rossiello's and Rufolo's attorney-client relationship had long been established. The second and third contingent fee agreements purportedly were necessary due to unforeseen difficulties in the resolution of Rufolo's case. Rufolo maintains that the first agreement is controlling; Rossiello asserts that the third agreement governs.

 This Court referred Rossiello's motion to Magistrate Judge W. Thomas Rosemond, Jr. for resolution on March 10, 1995.

 Now before this Court is Magistrate Judge Rosemond's 17-page Report & Recommendation (the "Report"), dated September 26, 1995 which recommends that "the original contingency fee agreement is the controlling fee contract. Thus, Rossiello is entitled to one third of the sums recovered from the suit or $ 63,139.83 plus interest. This amount includes one third of the cure and maintenance awarded to Rufolo, as this award was procured by Rossiello's efforts."

 After conducting a de novo review of the record, 28 U.S.C. § 636(b)(1), engaging in an extensive analysis of the Report, examining the relevant authorities, and considering the parties' various objections to the Report, this Court finds Magistrate Judge Rosemond's reasoning to be fundamentally sound and his decision to be legally and factually proper. Accordingly, the Court adopts and incorporates Magistrate Judge Rosemond's Report pursuant to 28 U.S.C. § 636(b)(1) with the following modification.

 The controlling contingency fee agreement, dated October 16, 1989, specifically provides:


I [Rufolo] authorize the said attorney to incur necessary and reasonable expenses in connection with the settlement, adjustment or prosecution of said claim and agree to compensate him in the amount of the actual expenses so incurred, regardless of the outcome thereof.

 While the Magistrate Judge apparently recognizes that Rufolo is contractually obligated to compensate Rossiello for those expenses reasonably incurred in connection with Rufolo's case, the Magistrate Judge failed to include those expenses as part of the recommended fee award. Thus, this Court concludes that, in addition to the $ 63,139.83 representing one third of the sums recovered in Rufolo's suit, Rossiello is entitled to recoup his reasonable expenses from Rufolo. The Court refers any dispute as to the "reasonableness" of the $ 16,471.29 in expenses claimed by Rossiello to Magistrate Judge Rosemond for resolution.




 DATED: Nov. 14, 1995


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