Amstead v. McFarland

Attorney was entitled to of only the father's portion of $325K settlement attorney procured for the wrongful death of the father and the mother's son, since the mother withdrew from the suit prior to settlement.

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Laura Lee Amstead appeals from the trial court’s order denying her motion for recoupment of attorney fees from Robert P. McFarland, Sr. McFarland, Sr., who originally represented her and her ex-husband, Robert Amstead, in their wrongful death claim arising from the death of their son, Alan, in a motor vehicle accident. Following the signing of a contingent fee contract by Laura and Robert Amstead with McFarland, Sr. in March 2003, McFarland, Sr. filed a wrongful death action in June 2003, on behalf of Laura Amstead and Robert Amstead against several defendants.1

A series of e-mails exchanged between Amstead and McFarland, Sr. in October and early November 2003, reflect that Laura Amstead had become concerned about her personal information being requested by the defendants during discovery, her fear of one of the defendants, and her increasing discomfort in having to deal with her ex-husband, and wanted out of the case. In response to her request to get out of the case, McFarland, Sr. advised her, via e-mail, that if she got out of the case, it would damage the chance of recovering for the life of her son. He told her he would need a “letter from you, not an e-mail, demanding that I move the court to have your sic removed as plaintiff in the case and stating that you will have no further involvement with the matter including distribution of funds which will go entirely to your ex-husband. ” Emphasis supplied. Laura Amstead’s letter dated October 20, 2003, stated that “ I am demanding that you move the court to have me removed as plaintiff in the case. I will have no further involvement with the matter including the distribution of funds which will go entirely to my ex-husband, ” and it was received by McFarland, Sr. Emphasis supplied. McFarland, Sr. acknowledged during his testimony at the apportionment hearing in February 2005, that he never told Laura Amstead that she had the right to withdraw from the litigation but could still pursue a portion of the settlement pursuant to OCGA § 19-7-1.

Amstead v. McFarland

Attorney was entitled to of only the father's portion of $325K settlement attorney procured for the wrongful death of the father and the mother's son, since the mother withdrew from the suit prior to settlement.

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