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Seuling v. Liberty Mutual Insurance Co.

United States District Court, Second Circuit

August 27, 2013



P. KEVIN CASTEL, District Judge.

Plaintiff Barbara Seuling asserts that defendant Liberty Mutual Insurance Company ("Liberty Mutual") has unlawfully refused to forward payment of $100, 000 that she allegedly is owed in exchange for releasing all claims arising out of an automobile accident in which she was injured. Liberty Mutual has filed a motion to dismiss pursuant to Rule 12(b)(7), Fed. R. Civ. P., asserting that the plaintiff failed to join a necessary and indispensible party. (Docket # 26.) This purportedly necessary party, the law firm of Metnick & Levy, P.A. (the "Metnick Finn") has asserted an attorneys' fees lien on the $100, 000 sum, and also is an adverse party to Seuling in two separate, ongoing litigations. Separately, plaintiff Barbara Seuling moves for summary judgment pursuant to Rule 56, Fed.R.Civ.P. (Docket # 20.) Discovery in this case is complete. (See Docket # 18.)

For the reasons explained, the defendant's motion is granted and the plaintiff's motion is denied.


A. Plaintiff's Accident, Her Retention of the Metnick Firm and Her Release of Claims.

On May 7, 2010, plaintiff was involved in an automobile accident while vacationing in Vermont. (Seuling Aff't ¶ 3.) Plaintiff asserts that the accident caused multiple spinal fractures and that she now has difficulty walking. (Seuling Aff't ¶ 4.) The driver of the other vehicle, non-party Lisa M. Braman, was insured by defendant Liberty Mutual. (See, e.g., Pl. Ex. E.) To a significant extent, the parties' motions turn on the subsequent actions of the Metnick Firm.

According to Seuling, while she was recovering from her accident in an Albany hospital, she was contacted by the Metnick Firm, which is based in Florida. (Seuling Aff't ¶ 5.) Plaintiff signed a retainer agreement with the Metnick Firm, although she now asserts that she did not understand its terms due to her pain medication. (Seuling Aff't ¶¶ 7-8; Def. Mem. Ex. A.) Plaintiff states that she never had direct communications with any attorney at the Metnick Finn and has not been told what services it provided, if any. (Seuling Aff't ¶ 9.)

Plaintiff thereafter received a letter from a secretary at the Metnick Firm dated September 17, 2010, stating that "we have settled your case for the amount of $100, 000. Enclosed please find a release which requires your signature in the presence of a notary public." (Seuling Aff't ¶ 10 & Pl. Ex. O.) The Metnick Firm commenced no litigation plaintiff's behalf.

Plaintiff asserts that she and the Metnick Firm never discussed releasing claims arising out of the Vermont auto accident. (Seuling Aff't ¶ 11.) Plaintiff states that she did not approve the settlement, never signed the settlement authorization presented by the Metnick Finn, and told a Metnick Firm paralegal that she rejected the settlement. (Seuling Aff't ¶ 13.) Thereafter, on April 8, 2011, plaintiff terminated the services of the Metnick Finn. (Seuling Aff't ¶ 4 & Pl. Ex. Q.)

On June 15, 2011, however, plaintiff signed the "Release and Settlement of Claim Form" (the "Release") which stated that in exchange for consideration of $100, 000 to be paid by Liberty Mutual, Seuling would release Lisa Braman and Liberty Mutual from all claims and damages arising out of the Vermont auto accident. (Pl. Ex. H.)

B. Subsequent Disputes Concerning the Metnick Firm and the Release.

After its termination, the Metnick Firm commenced an action against Seuling, her current attorney Anthony J. Pirrotti, and Liberty Mutual in the state of Florida, seeking recovery of unpaid legal fees.[1] (See Metnick & Levy, P.A. v. Seuling, et al., No. 502011CA011719, Fla. Cir. Ct. Palm Beach Cnty.; Seuling Aff't ¶ 16; Brescia Dec. ¶ 5; Pl. Ex. G.) The trial court dismissed that action on venue grounds but did not address the merits; its dismissal is currently on appeal. (Brescia Dec. ¶ 5; Def. Ex. C.)

Shortly after the Florida action was filed, the plaintiff in this action and her current attorney, Pirrotti, commenced an action as co-plaintiffs against the Metnick Firm and Kenneth Metnick, Esq. in New York Supreme Court, Westchester County. (Seuling, et al. v. Metnick et al., No. 54254/11, N.Y. Sup. Ct. Westchester Cnty.; Def. Ex. D.) They sought a declaratory judgment that Seuling did not breach the retainer agreement and does not owe the Metnick Firm more than the value of work performed. (Id.) In the Westchester action, they also asserted a separate claim for malicious prosecution and abuse of process for commencing the Florida action. (Id.) In its decision on a motion to dismiss by the Metnick defendants, the court observed, among other things:

[T]here are numerous questions not the least of which are in which State was the Retainer Agreement entered into, which State's law applies and whether Seuling breached the Retainer Agreement - under whatever the applicable law is - by refusing to accept the settlement and which court has jurisdiction over all the ...

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