News
Personal Injury & Torts
Apr. 24, 1999
Sole Practictioner Awarded $1.1M in Fee Dispute
SAN FRANCISCO - A blowup over attorney fees in two exploding propane barbecue cases was brought one step closer to resolution by a Marin County Superior Court judge this week, who handed Alameda sole practitioner Montie S. Day $1.1 million from Greenbrae lawyer Robert W. Mills.
Attorneys for Mills said Thursday that they do not regard the decision as final.
Day and Mills filed a class action on behalf of burn victims of gas grill fires. The case settled with manufacturers for an undisclosed amount before a class was certified.
Day sued Mills, alleging his co-counsel kept most of the settlement funds. Mills argued that attorneys at his Mills Law Firm worked far more billable hours and advanced most of the costs.
But Taylor concluded after a expert-laden, 10-week bench trial that Day's insight into why propane barbecues sometimes detonate was key.
"While defendant Mills and staff devoted more hours to the litigation, without the 'idea' for the litigation and the extensive research, investigation and technical analysis performed by Day" there would have been no case to generate fees, Taylor said in her decision.
Day's lawyer in the fee dispute, David Hicks of Oakland's Hicks Briggs & Associates, said his client studied propane barbecues extensively.
"He knew as much as the experts he retained," Hicks said.
Day's conclusion: Most propane barbecues are manufactured without a so-called stop-fill valve. Absence of the valve allows the propane tank to be overfilled with fuel, which can expand when the air temperature around the tank rises, causing the propane to spill and ignite.
Mills was not available for comment Thursday. His attorneys at San Francisco's Friedman Ross & Hersh said they regard Taylor's decision as proposed, not final, and have faxed the judge that they intend to file objections. Day v. Mills, 171863.
"The underlying issue is the interpretation of a contract that called for Day and Mills to perform equal work," said Friedman Ross partner Michael J. Kass. "The judge understated the amount of work Mills did by a factor of 10."
Mills developed a theory of recovery under California's Business and Professions Code that allowed the cases to overcome defense demurrers, Kass said.
The Marin County Superior Court propane tank cases that gave rise to the fee dispute were Herlinger v. Sunbeam, 157097, and All v. Fiesta, 165053.
"This case was on the ropes until the Mills Law Firm came up with an unfair business practices claim," Kass said. "Taken with Day's contribution, I think there was a good balance of contributions."
The judge dinged Mills on breach of contract, breach of trust and conversion charges, but absolved him of fraud and forgery.
Could those findings result in State Bar discipline?
"No comment," Kass said.
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John Roemer
Daily Journal Staff Writer
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