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Lawyers Mutual Liability Ins. Co. of North Carolina v. Mako

Court of Appeals of North Carolina

April 1, 2014

LAWYERS MUTUAL LIABILITY INSURANCE COMPANY OF NORTH CAROLINA, Plaintiff,
v.
SUE E. MAKO; R. SCOTT GIRDWOOD; and MAKO & ASSOCIATES, P.A., Defendants

Heard in the Court of Appeals November 5, 2013.

Wake County. No. 11 CVS 16860.

Poyner Spruill LLP, by T. Richard Kane and Andrew H. Erteschik, for plaintiff-appellee.

Girdwood & Williams, PLLC, by Benjamin D. Williams, for defendant-appellants.

BRYANT, Judge. Judges McGEE and STROUD concur.

OPINION

Page 810

Appeal by defendants from order entered 18 December 2012 by Judge Lucy N. Inman in Wake County Superior Court. Heard in the Court of Appeals 5 November 2013.

BRYANT, Judge.

As our General Statutes hold that a cashier's check is to be treated in the same fashion as a traditional check, a cashier's check must undergo a provisional settlement period before it can be deemed irrevocably credited by the payor bank. Where there is no issue as to any material fact regarding our statutory language concerning the processing of a cashier's check, summary judgment is appropriate.

Defendants Sue E. Mako; R. Scott Girdwood; and Mako & Associates, P.A. (" defendants" ) had a professional liability insurance policy (" the policy" ) with plaintiff Lawyers Mutual Liability Insurance Company (" Lawyers Mutual" ) for the period of 7 August 2011 through 7 August 2012. On 17 June 2011, defendants received an email from a potential client, Oliver Burkeman (" Burkeman" ). Burkeman contacted defendants seeking assistance in collecting $350,000.00 allegedly owed him by his former employer, Crest Iron and Steel; Burkeman claimed the money was part of a workers' compensation claim settlement.

On 23 June 2011, Burkeman sent a signed Fee Agreement to defendants, and defendants agreed to represent Burkeman in collecting his settlement money. Defendants would assess Burkeman a contingent fee of 20% of any amount obtained.

On 11 July 2011, defendants received an initial check for $175,000.00 from Crest Iron and Steel in partial payment of the amount purportedly owed to Burkeman. Defendants deposited the check into their trust account on 12 July 2011. Although defendants had a policy of holding funds for ten days prior to distribution, the policy was not enforced and distribution of the funds was authorized that same day. Burkeman was to collect $140,000.00 after defendants' contingent fee of $35,000.00 had been deducted from the $175,000.00 check. Defendants attempted to wire $140,000.00 to a bank account in Japan per Burkeman's instructions. However, due to an error in account information, the wire was unsuccessful and defendants could not collect their contingent fee.[1]

On 14 July 2011, defendants received a second check for $175,000.00 from Crest Iron and Steel in partial payment of the amount ...


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