Court of Appeals of Ohio, Eighth District, Cuyahoga
KISLING, NESTICO & REDICK, L.L.C. PLAINTIFF-APPELLEE
PROGRESSIVE MAX INSURANCE COMPANY, ET AL. DEFENDANTS-APPELLANTS
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANT For Progressive Max Insurance Company
David G. Utley Collins, Roche, Utley & Garner, L.L.C.
Richard M. Garner Collins, Roche, Utley & Garner, L.L.C.
ATTORNEYS FOR APPELLEE Christopher J. Van Blargan John J.
Reagan Kisling, Nestico & Redick, L.L.C.
Todd Anthony Thornton Christopher Ankuda Ankuda, Stadler
& Moeller, Ltd.
Darvale Thomas, Darvale Thomas
BEFORE: Kilbane, J., E.A. Gallagher, A.J., and Jones, J.
JOURNAL ENTRY AND OPINION
EILEEN KILBANE, J.
After reconsideration, the opinion as announced by this court
on October 5, 2017, Kisling, Nestico & Redick, L.L.C.
v. Progressive Max Ins. Co., 8th Dist. Cuyahoga No.
105287, 2017-Ohio-8064, is hereby vacated and substituted
with this opinion.
Defendant-appellant, Progressive Max Insurance Company
("Progressive"), appeals from the trial court's
decision granting summary judgment in favor of
plaintiff-appellee, Kisling, Nestico & Redick
("KNR"). For the reasons set forth below, we
In 2014, Todd Anthony Thornton ("Thornton") and
Darvale Thomas ("Thomas") were involved in an
automobile accident. At the time of the accident, Thornton
was insured with Progressive. Thomas retained the law firm of
KNR to represent him for all claims arising from the
accident. Thomas and KNR entered into a contingent fee
agreement, which gave KNR a charging lien on the proceeds of
any insurance settlement, judgment, verdict award or property
obtained on Thomas's behalf. The contract specifically
provides that "[KNR] shall have a charging lien upon the
proceeds of any insurance proceeds, settlement, judgment,
verdict award or property obtained on [Thomas's]
behalf." While negotiating with Progressive on
Thomas's behalf, KNR presented a settlement package and
demand and obtained a settlement offer of $12, 500.
During the course of its representation of Thomas, however,
KNR became aware that Thomas discussed his accident with
another law firm. KNR contacted both the other firm and
Progressive and notified them of its fee agreement and
charging lien with Thomas. Progressive concedes it received
"communication" from KNR that KNR was asserting a
lien against any settlement proceeds paid to Thomas. Despite
its prior knowledge of KNR's charging lien, Progressive
eventually settled the claim directly with Thomas.
In November 2015, KNR sought payment of its legal fees and
expenses by filing a complaint against Progressive, Thornton,
and Thomas. KNR alleged that it met its obligations under the
contingent fee agreement with Thomas and obtained a
settlement offer from Progressive but did not receive any
payment for its services. KNR's claims against Thomas
were for breach of contract, breach of fiduciary duty and the
implied duty of good faith and fair dealing, and quantum
meruit/unjust enrichment. It alleged that Thomas
intentionally breached the terms of the contingent fee
agreement by settling the claim directly with Progressive
after KNR obtained a settlement offer. As a result, Thomas
was unjustly enriched by accepting KNR's services and
advancement of claim expenses without reimbursing KNR for its
KNR's claims against Progressive and Thornton were to
enforce the charging lien and for tortious interference. It
alleged that Progressive and Thornton (through his agent,
Progressive) had actual knowledge of its charging lien prior
to settling directly with Thomas and distributing the
proceeds to him solely. KNR further alleged that Progressive
and Thornton knew of the contingency fee agreement between
Thomas and KNR and intentionally procured Thomas's breach
of the fee agreement.
KNR voluntarily dismissed Thornton from the action and
conceded that it did not have a claim of tortious
interference against Progressive. The trial court granted
default judgment in KNR's favor against Thomas. As a
result, the only remaining issues related to Progressive were
whether KNR had a right to "enforce the charging
lien" and whether KNR was entitled to damages based on
quantum meruit/unjust enrichment. Both Progressive and KNR
filed motions for summary judgment as they relate to these
The trial court denied Progressive's motion for summary
judgment but granted KNR's motion for summary judgment.
It found that Progressive "had a duty to protect
[KNR's] interest in the settlement proceeds." The
trial court held that Progressive owed KNR the amount of
KNR's interest in the settlement proceeds; therefore,
Progressive was "liable for the quantum meruit value of
[KNR's] legal services which include litigation
Progressive now appeals, raising the following single
assignment of error for our review.
trial court committed reversible error by entering summary
judgment in favor of [KNR] and against [Progressive] with
respect to [KNR's] claim for an "equitable
lien" for contingent attorney fees.
Progressive argues the trial court erred because it was not
in privity of contract with KNR and there is no statute
obligating it to assist KNR in the recovery of fees owed to
KNR by Thomas. Progressive contends that ...