Court enters settlement in case of confused counsel

By John O'Brien | Feb 25, 2013

CHARLESTON – The state Supreme Court has entered a settlement in a case in which the plaintiff's attorney became confused as to what costs his client would have to pay.

The court ruled unanimously on Feb. 22 to enter a settlement reached between plaintiff Daniel Cain and defendant Catherine Kennedy in a lawsuit brought over a car crash.

Cain and his attorney, Shawn Romano, accepted a $17,500 settlement in March 2011. The offer was made before the defendant made an offer of judgment during a trial of $16,000.

Cain and Romano, though, thought that if a jury returned a verdict less than $16,000, Cain would be responsible for paying the defendant’s attorneys fees pursuant to Rule 68(c).

After Romano withdrew as counsel, Cain’s new lawyer, Larry Kopelman, explained that “costs” under Rule 68 does not mean attorneys fees.

“On appeal, Petitioner argues the settlement between the parties should not be enforced because it was only after mediation that he discovered that his counsel, Mr. Romano, interpreted Rule 68 differently than counsel for (Kennedy) and that counsel for (Kennedy) had superior knowledge of the law,” the memorandum decision says.

“(Kennedy) argues that her counsel had no duty whatsoever to inform petitioner of the prevailing state of law.”

Kennedy’s attorney further argued that if Cain was not accurately informed of the law by Romano, then his remedy would be a malpractice lawsuit against him.

“This court has reviewed the appendix filed by Petitioner and finds within it no indication that counsel for (Kennedy) intentionally, or inadvertently, misled either Petitioner or Mr. Romano into thinking that attorneys fees and experts fees are normally included as ‘costs’ under Rule 68(c),” the decision says.

“Therefore, after careful consideration, this court concludes that the circuit court did not abuse its discretion in granting (Kennedy’s) motion to enforce settlement.”

From the West Virginia Record: Reach John O’Brien at

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