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Ex-officials sue Bentleyville for attorney bills
(by Sue Reid - November 19, 2008)
Ex-officials sue Bentleyville for attorney bills
By SUE REID
Former Bentleyville Mayor Michael Canty and three former Village Council members have filed lawsuits in Cuyahoga County Court of Common Pleas against the village.
Former Councilmen Harvey Bruner and Christopher Lockhart and Councilwoman Deborah Axelrod, along with Mr. Canty, are seeking outstanding legal fees billed by their individual attorneys them for work defending them in the lawsuit brought by former village Treasurer Margaret Bays. Individual lawyer fees of up to $400 an hour were billed, while the village's insurance company rate was $130 and hour.
To date, HAS Insurance, which was the village's carrier, has paid over $500,000 in legal fees in defending Mr. Canty, Mr. Bruner, Mr. Lockhart and Mrs. Axelrod. Officials estimated that $50,000 to $75,000 per defendant in fees is being sought.
Village Law Director Kenneth A. Schuman wrote to each of the attorneys that Bentleyville will not pay the overage.
Mr. Bruner was represented by attorney Michael O'Shea, Mr. Canty by Robert V. Housel, Mrs. Axelrod by Craig Bashein and Mr. Lockhart by John P. O'Neil.
They had been named as plaintiffs in the Bays lawsuit, which resulted in nearly two years of litigation. A federal court judge dismissed the suit filed by Mrs. Bays, the former village treasurer, and her husband, James C. Bays, against the village, Mr. Canty, former Law Director Joseph W. Diemert Jr. and the council members named. The case is under appeal.
"It was a lengthy lawsuit," Mr. Bruner said last week. "They put in a lot of work," he said of the lawyers, and there were numerous depositions. "I don't know one lawyer with that experience that makes that kind of hourly pay. The village has to pay the excess" above what the insurance allowed, he said.
"We were entitled to choose our counsel, and council, by statute, has to pay for our counsel," Mr. Bruner said.
"We provided them a defense to this lawsuit," Mayor Leonard Spremulli said last week. "For all practical purposes, we think it's done."
Mr. O'Shea said last week that he was going to charge Mr. Bruner "a nominal rate of $225 an hour."
"Everybody was aware of the reimbursement rate, but that doesn't cover the whole bill," he said. "It doesn't eliminate the city's separate, independent obligation to statutorally indemnify Mr. Bruner and all the defendants."
The one invoice for Mr. O'Shea was $35,000, as of May, over and above what the insurance paid, Mr. Schuman said, but he had not received any other bills as of this week.
Mr. O'Shea said the Bays lawsuit "was a very time-intensive type of case, and an itemized bill has been sent to the village. Our bill is to Mr. Bruner. Mr. Bruner submitted it to the village, and the village is strictly responsible to pay the bill."
Mr. Schuman said he was surprised by the suits and will contest the claims through the court of common pleas. He said the $130 per hour "is pretty representative of what an insurance company would pay."
Mr. Housel said the village "left us little choice in the matter," other to sue when it declined to pay the bill.
"None of us agreed to the fee they wanted us to take, at least to my knowledge," Mr. Housel said. His rate, which averages $300 or more an hour, "is reasonable," he said.
"I have been a litigation attorney in the Cleveland area for 34 years. You charge a rate that you think is appropriate for your own individual situation." The village "made it abundantly clear they would not pay, so we were left with little choice but to sue," Mr. Housel said.
Mr. Schuman said the village has a statutory duty to defend its employees, its council people and mayor. "The discrepancy is whether they were paid in full based on the insurance company's payments," he said. It is now up to the court to decide that, he said.
Mr. Canty said that, originally, the insurance company only wanted to provide one attorney for all of the defendants. "That is unethical under the bar or state law," he said. When there are six different defendants with differing needs, "one attorney can't be put in a position with conflicting issues and conflicting defendants."
When the insurance company stated that they each could hire their own attorneys, they did, Mr. Canty said. "At the rate of $130, you can't even get a first-year intern. We didn't want the cheapest attorney, we wanted the best because we were concerned."
When the insurance company said it would only pay the $130 per hour, none of the attorneys accepted that as their full fee, he said.
At that time, Village Council passed a motion refusing to reimburse the fees, Mr. Canty said. A modest amount was proposed, he said.
"In the end, it's the village who had the responsibility to these attorneys and these elected officials."
Mr. Canty said the hiring of the attorneys took place prior to the insurance company stating it would only cover the $130. "Now, in 2007 and 2008, the village put in writing that they do not wish to spend any more money on legal fees. That's not an option," he said.
Mr. Spremulli said the village's concern is that they have been through an entire year without any litigation, and "here we are being sued again for something this administration is not responsible for." The former officials now are asking the residents "to pick up the tab," he said.
"We intend to defend these lawsuits," Mr. Spremulli said. "We don't believe we're responsible. These lawyers have been paid a significant" amount of fees "for this case already."
"If they don't get paid," Mr. Canty said, "they come after us."
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