Metropolitan News-Enterprise

 

Friday, August 23, 2019

 

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Court of Appeal:

Woman Who Waived Attorney Fees Properly Awarded Them

Opinion Says Victim of Drunk Driver Who Agreed in Settling Lawsuit That Each Side Would Bear Its Own Costs Was Nonetheless Entitled to Reimbursement for Payment to Her Lawyers Through Restitution Order

 

By a MetNews Staff Writer

 

—San Luis Obispo County Jail

NICOLE MISSAMORE

Traffic Accident Victim

The Court of Appeal for this district held yesterday that a judge properly ordered a man who pled no contest to drunk driving offenses to pay a victim $178,000 to compensate her for attorney fees she incurred in settling her civil action against him, though the settlement agreement spelled out that the parties would bear their own costs.

Justice Martin Tangeman of Div. Six wrote the opinion. It affirms a restitution order by San Luis Obispo Superior Court Judge Dodie Harman.

Under the agreement, a victim, Nicole Missamore—identified in the opinion as “N.M.”—was paid $445,000 by Drew Barrett Grundfor’s insurer, Allstate based on the insured having rear-ending her vehicle, causing her to incur personal injuries. She paid her attorneys 40 percent of her recovery, pursuant to a contingency fee agreement.

(The policy limit was $500,000. The balance of the money went to the two passengers in her vehicle.)

Grundfor argued on appeal that Missamore is not entitled to attorney fees because in the release she signed, she waived those fees.

Tangeman pointed to the portion of Art. I, §28 of the state Constitution which says:

“Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss.”

Rational Basis

He declared:

“The trial court properly ordered Grundfor to pay $178,000 in restitution because there was a rational, factual basis for that order: N.M. incurred those costs to settle her civil lawsuit. ‘Actual and reasonable’ attorney fees constitute an economic loss….Such fees are recoverable unless they are offset in a civil settlement….Here, they were not; the settlement required each side to bear its own attorney fees. The court was thus required to order Grundfor to pay full restitution for the fees….

“That N.M. signed a release as part of the settlement is ‘irrelevant’ to the propriety of the restitution order….While the release may have relieved Grundfor from further civil liability, it did not relieve him from paying criminal restitution.”

Tangeman added:

“N.M.’s settlement with Allstate and the state’s right to compel Grundfor to pay restitution operate independently of each another….The settlement was between N.M. and Allstate. The restitution order was between Grundfor and the state.”

The jurist observed that forcing Grundfor—whose 2014 drunk driving offense was not his first—to personally pay restitution will aid in his rehabilitation.

Public Policies

Grundfor argued that the public policy in favor of encouraging settlements should preponderate over the policy in favor of restitution.

“Here, both policies were furthered: N.M. settled her civil lawsuit with Allstate, and the trial court ordered Grundfor to pay N.M.’s attorney fees to aid in his rehabilitation,” Tangeman wrote. “There were thus no conflicting policies that would constitute ‘compelling and extraordinary reasons’ to refuse to order restitution.”

The opinion relates that Harman gave Grundfor—whose His blood-alcohol content was between 0.30 and 0.35 percent—a suspended sentence and placed him on three years of probation. It tells of Grundfor having sued Missamore for breaching the settlement agreement and that he has not yet served her.

News reports reflect an arrest of Missamore for DUI by California Highway Patrol officers in 2016, an arrest of her last year by Paso Robles police for possession of a controlled substance, and an arrest of her on May 8 by Atascadero police for possession of drug paraphernalia. There were no reports indicating prosecutions.

 

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