Bosch v. Standard Oil Co. of Cal.

DUNIWAY, J.

Plaintiff and his attorneys appeal from an order made after final judgment. The order denied a motion, made by the attorneys alone, for an order awarding them attorneys’ fees and a pro rata share of their out-of-pocket expenditures, to be paid from the portion of a judgment recovered in this action by intervener, Argonaut Insurance

[427]

Exchange. No question is raised by respondent Argonaut as to the standing of the attorneys to make the motion or as to the appealability of the resulting order. We therefore do not consider these matters, but decide the appeal on the merits.

The facts are as follows: Plaintiff Bosch was an employee of one Arthur B. Siri, Inc., and was seriously injured in the course of his employment. Argonaut was Siri’s compensation carrier, and paid out, for medical care and other benefits under the Workmen’s Compensation Act, $9,079.18. Thereafter, plaintiff filed this action, naming as defendants Standard Oil Company of California, James Alfred Vadon and R. A. Pellegrini. Argonaut intervened, seeking to recover the moneys paid out by it. After a trial lasting about four weeks, judgment was rendered upon a jury verdict awarding plaintiff $116,741.67 and Argonaut $9,079.18. Later, plaintiff agreed to settle for $110,000, payable $100,920.82 to plaintiff and $9,079.18 to Argonaut.

The motion was heard upon affidavits and oral testimony. We must assume, to the extent that there is any conflict in the evidence, that the court accepted the portions favorable to respondent.

(Quisenberry

v.

Rulison,

129 Cal.App.2d 268 [277 P.2d 57].) The following is therefore taken from the affidavit of Mr. Partridge, one of respondent’s counsel.

1. The accident occurred August 25, 1955, and was first reported to Argonaut on August 26, 1955.

2. On August 31, 1955, the office of DeMeo & DeMeo contacted adjusters for Argonaut requesting their assistance in developing the facts involved.

3. On September 20, 1955, the entire subrogation file, then possessed by Argonaut was forwarded to Argonaut’s attorneys, and on the same date Argonaut wrote to DeMeo & DeMeo, advised them of that fact and further informed them of Argonaut’s intention to prosecute its own claim.