to: all KS claims in Bargo, et al. v. State of
Montana, Montana First Judicial District Court, Lewis
and Clark County, Civil Cause No. BDV 2018-1612 consolidated
before this Court under Eustice et. al v. State of
Montana et. al
ORDER APPROVING KS ATTORNEY FEES
matter is before the Court on KS Plaintiffs' (Libby Mine
Claimants) motion for approval of attorney fees. Hearing was
held before this Court on January 7, 2019, on the joint
motion for approval of settlement. On the basis of the motion
for Court approval of attorney fees, and hearing on the joint
motion for approval of settlement, good cause appearing, and
the Court having fully considered the same, now enters the
Beginning in the late 1960s and increasingly into the 1990s,
Zonolite Mining Company/W.R. Grace (collectively
"Grace") employees, former employees, and family
members made claims against Grace for asbestos-related
diseases. Many claims settled, various cases were tried to
verdict, and certain cases involved appeals to the Montana
Supreme Court and the U.S. Ninth Circuit Court of Appeals.
The KS Libby Mine Claimants included in this settlement
allege that the State of Montana is liable in damages for the
asbestos-related diseases suffered. Claimants filed claims
against the State seeking to establish the legal liability of
the State of Montana and to recover monetary damages
resulting from that liability.
KS Libby Mine Claimants have extensively litigated their
claims, as have those similarly situated before them. Over
the years of litigation between the parties, there has been
the exchange of comprehensive written discovery, complex and
detailed expert reports, taking of numerous depositions, and
briefing of complex motions, to which tasks the KS Libby
Claimants' counsel have dedicated thousands of hours over
a number of years.
Negotiations led to an extensive formal mediation conference.
At the conclusion of the mediation conference, KS Libby
Claimants and the State entered into a tentative settlement
agreement. Following execution of the agreement, the parties,
through their counsel prepared and executed the requisite
releases, negotiated Medicaid and Medicare issues, and
presented the motion to approve the settlement to this Court.
Under the approved joint motion for approval of settlement,
the KS Libby Mine Claimants' cases and claims against the
State of Montana are settled by payment of $1, 250, 000, with
a contingent $400, 000 dependent on the result of pending
litigation between the State and its insurance company.
Court's Order Approving Settlement and Dismissal with
Prejudice approved the settlement. It also resolves and
dismisses the KS Libby Mine Claimants' cases and claims
against the State of Montana but expressly reserves their
claims against all other responsible parties. Copies of the
releases from KS Plaintiffs for claims against the State of
Montana have been provided to the Court.
Counsels' representation of the KS Libby Mine Claimants
is subject to a standard 33 1/3% contingent fee contract.
Representation of the Libby asbestos cases, including the
claims of the KS Libby Mine Claimants, has involved more than
a decade of litigation on multiple fronts, before various
state, federal, and administrative tribunals, and appeals
perfected in both state and federal courts of appeal. As
recognized by the parties, the cases and claims against the
State of Montana involve numerous disputed factual questions
and unresolved legal issues of extreme complexity.
settlement reached with the State of Montana has been fully
approved by each KS Libby Mine Claimant, inclusive of the
contingent attorney fee that results by operation of the
There has been no objection to the entry of an order
approving the KS Plaintiffs' Motion for Court Approval of
Where the subject of a contingent attorney fee contract does
not offend public policy, it will be enforced according to
his terms. FrankL. Pirtz Const, v. Hardin Town Pump,
Inc.,214 Mont. 131, 139, 692 P.2d 460, 464-65 (1984),
citing Gross v. Holzworth,151 Mont. 179, 440 P.2d