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Butterly v. Tamerlane Campground

June 22, 2007


[Doc. Nos. 44, 49]


This matter is before the Court on the request of plaintiff's counsel, John J. O'Rourke, Jr., Esquire, for an increase in attorney's fees pursuant to N.J.R. 1:21-7(f). All parties executed a written consent to the jurisdiction of this Court to decide Mr. O'Rourke's application pursuant 28 U.S.C. §636(c). On March 26, 2007, Mr. O'Rourke filed a "Motion For an Increase in Attorney's Fees Per N.J.R. 1:21-7(f)". [Doc. No. 44]. On April 24, 2007, Mr. O'Rourke filed his "Supplemental Motion ... for an Increase in Attorney's Fees Per N.J.R. 1:21-7(f)." [Doc. No. 49]. On May 14, 2007, this Court denied Mr. O'Rourke's Motion, "without prejudice to plaintiff's right to re-file his Motion upon receipt of the new relevant information the Court asked to be submitted for consideration." See May 14, 2007 Order [Doc. No. 53]. On June 1, 2007, plaintiff filed his "Amended Motion under N.J.R. 4:4-3 to Approve Settlement for a Minor." [Doc. No. 55].

The Amended Motion addressed, in part, Mr. O'Rourke's claim for attorney's fees. In addition to these written submissions, on June 5, 2007, this Court heard the sworn testimony of Mr. O'Rourke's co-counsel, Thomas J. Vesper, Esquire, supporting Mr. O'Rourke's application for attorney's fees.


The original complaint in this case was filed on July 14, 2003. [Doc. No. 1] The only remaining plaintiff is John Butterly ("Butterly"), a minor, by Samuel J. Kitchen, his Guardian.*fn1 This action arises out of an accident which occurred on July 18, 1996. On that date Butterly was injured when an unsecured newspaper vending machine fell from an elevated platform onto his head while his family was vacationing at Tamerlane Campground ("Tamerlane"). Defendant South Jersey Publishing Co. ("South Jersey") supplied the vending machine that fell on Butterly. The vending machine fell while Butterly was playing on it. The essence of Butterly's liability argument was that it was foreseeable that young children would play on the vending machine and therefore it should have been secured to prevent it from falling. Both defendants contested liability.

As a result of his accident Butterly suffered head injuries including, "a left frontal open depressed skull fracture and dural laceration ..., a left frontal lobe brain contusion and two deep lacerations on his forehead." See Motion at Doc. No. 44, ¶5. Butterly claimed that his accident caused "attention deficit disorder and cognitive difficulties including expressive language difficulties as a result of his injuries from the accident." Id. at ¶7. The parties do not dispute that Butterly suffered seizures after his accident and he is currently taking anti-seizure medication. However, the parties differed as to whether the seizures were caused by Butterly's 2001 accident. Plaintiff produced expert reports opining that Butterly's seizures were caused by his accident. In January of 2007, the parties reached a global settlement in the amount of $2.2 million. In an Order entered contemporaneously with this Opinion and Order, the Court approved the settlement and the manner in which plaintiff proposed to distribute the settlement funds.

On February 4, 2002, Mr. O'Rourke and his firm entered into a "Fee Agreement" with Butterly's parents. See Motion, Doc. No. 44, Exhibit F. The Fee Agreement provided that "[i]n consideration of the services rendered and to be rendered, it is agreed that Lawyer [John O'Rourke, Jr., Esquire] shall deduct and retain 33 [and] 1/3 percent from the gross settlement and/or verdict for his fees." However, after this lawsuit was filed in New Jersey plaintiff's counsel recognized that a New Jersey contingency fee agreement must be signed. Id. at Exhibit G. The executed "Contingent Fee Agreement and Limited Power of Attorney from New Jersey" set forth the statutory limit on contingent fees set forth in N.J.R. 1:21-7(c), which provides as follows:

In any matter where a client's claim for damages is based upon the alleged tortious conduct of another, ..., an attorney shall not contract for, charge or collect a contingent fee in excess of the following limits:

(1) 33 1/3% on the first $500,000 recovered;

(2) 30 % on the next $500,000 recovered;

(3) 25 % on the next $500,000 recovered;

(4) 20 % on the next $500,000 recovered;

(5) on all amounts recovered in excess of the above by application for reasonable fee in accordance with the provisions of paragraph (f) hereof; and

(6) where the amount recovered is for the benefit of a client who was a minor ..., the foregoing limits shall apply except that the fee on any amount recovered by ...

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