Archive for October 2013

Pro se legal malpractice claim dismissed for lack of affidavit of merit

October 30th, 2013 — 7:52pm

New Jersey

by Christopher Graham and Joseph Kelly

D’Agostino v. Drazin & Warshaw, P.C., Case No. A-1460-11T3 (Superior Court of N.J. Sep. 13, 2013)

Plaintiff filed a pro se legal malpractice complaint against his former lawyer. Plaintiff failed to produce an affidavit of merit under N.J.S.A. 2A:53A-27 which requires a plaintiff who alleges professional negligence to provide an expert’s affidavit stating the action has merit. Defendant attorney successfully moved to dismiss because of the lack of an affidavit of merit. Plaintiff appealed and the appellate court affirmed.

The appellate court noted that “our Court has held that an affidavit of merit is not required in those cases where, under the common knowledge doctrine, expert testimony would not be required to establish a deviation from the standard of care” and that “[t]he common knowledge doctrine applies ‘where “jurors” common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant’s negligence without a benefit of the specialized knowledge of experts.'”

Here, plaintiffs’ allegations of malpractice were so non-specific that it wasn’t clear that the common knowledge doctrine applied; and it didn’t matter that the Judge was the fact-finder rather than a jury.

Tags: New Jersey, legal malpractice, affidavit of merit

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Client’s conviction vacated for ineffective assistance of counsel, but legal malpractice claim dismissed because client didn’t prove actual innocence

October 30th, 2013 — 4:39pm


by Christopher Graham and Joseph Kelly

Fink v. Banks, 2013 IL App (1st) 122177 (Sep. 11, 2013)

Banks, an Illinois lawyer, represented Fink in an intentional homicide case in Wisconsin with the assistance of local counsel. Fink was convicted and and sentenced to 10 years in prison with 6 years probation.

Fink’s conviction was later vacated for ineffective assistance of counsel (Banks). A new trial was ordered and Finks was convicted of a lesser charge — second degree recklessly endangering safety — and he received a stayed sentence of five years plus three years probation.

Finks sued Banks for legal malpractice in Illinois. Banks successfully moved to dismiss the complaint arguing that Finks’ second conviction prevents him from establishing his actual innocence, which is a condition precedent to a criminal legal malpractice claim in Illinois.

The court noted that under Illinois law “a criminal defendant must establish his or her actual innocence before being able to recover for the criminal attorney’s alleged malpractice.”

Fink argued the State of Wisconsin’s decision to only charge him with a lesser offense proves his actual innocence on the intentional homicide charge. The court rejected this argument stating that actual innocence means “total vindication” or “exoneration.”

Here, Fink didn’t plead or prove he was actually innocent of the charge for which he was originally convicted. Fink argued his conviction should be reversed because of ineffective assistance of counsel — not because of actual innocence.

The court concluded “Fink’s failure to prove he is actually innocent of attempted first degree intentional homicide or any lesser included offenses dooms his legal malpractice claim.

Tags: Illinois, legal malpractice, ineffective assistance of counsel, actual innocence

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In defending specific performance action, attorney’s failure to argue trust rather than client owned property wasn’t legal malpractice because trust didn’t own the property

October 30th, 2013 — 2:21pm

New York

by Christopher Graham and Joseph Kelly

Thieriot v. Jaspan Schlesinger Hoffman, LLP, et al, Case No. 07-CV-5315 (TCP) (E.D. N.Y. Aug. 27, 2013)

Plaintiff, the sole trustee and sole beneficiary of a trust, transferred real property into that trust. Plaintiff received an offer to purchase the property and she hired defendant attorneys to draft a sales contract. The contract listed plaintiff — not the trust — as the Seller. Seller decided she didn’t want to go through with the sale after she was unable to get certain affidavits regarding ownership as required by the title company.

Buyer sued for specific performance and plaintiff retained defendant attorneys to represent her. Buyer prevailed. In that suit, defendant attorneys admitted plaintiff — rather than her trust — owned the property and didn’t raise a defense of lack of ownership.

Plaintiff alleged in this suit that defendant attorneys committed legal malpractice by failing to raise a defense of lack of ownership. Defendant attorneys’ summary judgment motion was denied because the court found there was a material issue of fact as to whether the decision to admit plaintiff was the owner and not her trust was a reason why Buyer was granted specific performance. Defendant attorneys successfully moved for reconsideration.

The issue essentially was whether the lack of ownership defense was futile. The court noted that it’s possible under New York law for the same person to be the trustee and a the sole present beneficiary under a revocable trust — but only if there one or more people hold a beneficial interest in the trust. Here, plaintiff was the sole trustee and sole beneficiary, and no one else had a beneficial interest in the trust. The trust thus was invalid and any purported transfer of real property to the trust was invalid and plaintiff remained the property owner.

Defendant attorneys failure to raise a lack of ownership defense thus wasn’t legal malpractice.

Tags: New York, legal malpractice

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D&O claim excluded by “Known Circumstances Revealed in Financial Statement Exclusion”

October 30th, 2013 — 2:27am


by Christopher Graham and Joseph Kelly

The Clark School for Creative Learning, Inc. v. Philadelphia Indemnity Insurance Company, Case No. 13-1171 (1st Cir. Oct. 23, 2013)(Massachusetts)

Philadelphia Indemnity issued a D&O policy to The Clark School for Creative Learning, Inc. with a policy period of July 1, 2008 to July 1, 2009.

Clark School was sued during the policy period by two of the school’s donors seeking return of a $500,000 gift who claimed their donation was induced by misrepresentations. The case settled and Clark School returned some of the gift.

Clark School then filed suit against Philadelphia Indemnity seeking defense and indemnity coverage. The District Court granted summary judgment to Philadelphia Indemnity based on the policy’s “KNOWN CIRCUMSTANCES REVEALED IN FINANCIAL STATEMENT EXCLUSION.” That exclusion provides, in pertinent part, that there’s no coverage for any losses” in any way involving any matter, fact, or circumstance disclosed in connection with Note 8 of the [School’s] Financial Statement.” Note 8 of the Financial Statement described the donor’s gift and referred to Note 7 which further described their gift.

Clark School appealed arguing that Note 8 was limited to the School’s financial difficulties and so the exclusion was limited to losses resulting from the school’s financial difficulties. The disagreed noting that Clark School’s reading of the exclusion was factually incorrect; it explicitly referenced the donor’s gift.

Clark School also argued that ejusdem generis requires that “in any way involving” in the exclusion be interpreted in light of the earlier phrases in the exclusion: “based upon, arising out of, directly or indirectly resulting from or in consequence of.” Clark School claimed that because the earlier clauses including a notation of causation, then “in any way involving” must as well. The court disagreed noting that: (1) “or in any way involving” is “a mop-up clause intended to exclude anything not already excluded by the other clauses; and (2) the word “or” is used in the disjunctive sense and indicates that “in any way involving” is “a separate item in the list that goes beyond the scope of the other terms.” The 1st Circuit further noted that even if causation were required, causation exists as Clark School’s losses were caused by the school’s alleged misrepresentations about the donor’s gift.

Clark School lastly argued the plain language reading of the exclusion must give way to Clark School’s reasonable expectations. Clark School claimed that it couldn’t have known the exclusion would apply to the gift because suit hadn’t been filed and it wasn’t a “known” circumstance. That argument was rejected because the exclusion clearly referred to the gift. The court also noted that “when a contract is not ambiguous, a party can have no reasonable expectation of coverage when that expectation would run counter to the unambiguous language of an insurance policy.”

Tags: Massachusetts, D&O, insurance, known circumstances exclusion

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Florida – no coverage when first of related wrongful acts occurred before policy period

October 30th, 2013 — 2:23am


by Christopher Graham and Joseph Kelly

The Zodiac Group, Inc. v. Axis Surplus Insurance Company, Case No. 13-10941 (11th Cir. Oct. 23, 2013)(Florida)

Axis issued a professional liability policy to Zodiac Group, Inc. and two individuals (collectively, “Zodiac”). Zodiac offers “psychic” hotline telephone services.

In November 2001, Zodiac entered into an agreement under which Linda Georgian, a renowned pyschic and tv host, agreed to endorse Zodiac’s services. In March 2007, the agreement ended.

In April 2008, Georgian sued Zodiac in Florida state court alleging that Zodiac used her name and likeness after the agreement expired. In November 2009, Gregorian’s complaint was dismissed without prejudice for lack of prosecution. In January 2010, Georgian sued Zodiac in federal court with a complaint predicated on the same wrongful conduct as her state court complaint. The parties ultimately settled.

Axis issued consecutive professional liability policy to Zodiac with policy periods of October 1, 2008 to October 1, 2009 and October 1, 2009 to October 1, 2010.

The Axis policy provides coverage for claims arising from “interference with rights of privacy or publicity, including … commercial appropriation of name or likeness.”

The Axis policy provides that “all Claims arising from the same Wrongful Act” are deemed to have been made on the same date; and all wrongful acts “related by common facts, circumstances, transactions, events, and/or decisions … as one Wrongful Act.”

After the federal court complaint was filed in January 2010, Zodiac notified Axis of the litigation. Axis denied coverage and refused to defend because the claims in the federal complaint were “first made” before the October 1, 2008 to October 1, 2009 policy period.

Zodiac subsequently filed suit against Axis seeking a declaration of coverage. The 11th Circuit noted that the wrongful acts alleged in Georgian’s state and federal complaints

The 11th Circuit dismissed Zodiac’s complaint because “a condition precedent to coverage under the Policy was that the claims have been ‘first made … during the Policy Period’ from October 2008 to October 2010. Because all claims in Georgian’s state and federal complaints ‘aros[e] from the same Wrongful Act’ and because the Policy deemed the claims for that same Wrongful Act to have been first made in April 2008, the claims in Georgian’s federal complaint were not ‘first made’ during the policy period.”

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Virginia – D&O insurer obligated to defend insureds served with search warrant and subpoena

October 29th, 2013 — 8:52pm


by Christopher Graham and Joseph Kelly

Protection Strategies, Inc. v. Starr, Case No. 1:13-cv-00763 (E.D. Va. Sept. 10, 2013)

Starr issued a “Resolute Portfolio for Private Companies” policy to Protection Strategies, Incorporated (“PSI”) which provided coverage for PSI and its officers.

PSI received a February 1, 2012 search and seizure warrant and subpoena from the NASA Office of the Inspector General (“OIG”) and a June 2012 letter from U.S. Attorney for the Eastern District of Virginia indicating that it was investigating PSI for civil liability related to PSI’s participation in the Small Business Administration Section 8(a) program.

PSI retained counsel and submitted its counsel’s invoices to Starr. Starr refused to reimburse for defense costs stating “the NASA Subpoena [and] Search and Seizure Warrant … are not demands for relief or proceedings commenced by the service of a complaint or similar document,” and thus “there is no coverage or reimbursement available for the invoices submitted by Dickstein Shapiro as there is no Claim against PSI.”

Starr’s policy defines “Claim” as:

any “written demand for monetary, non-monetary, or injunctive relief
made against an Insured” and any “judicial, administrative, or
regulatory proceeding, whether civil or criminal, for monetary,
non-monetary or injunctive relief commenced against an Insured … by
(i) service of a complaint or similar pleading; (ii) return of an
indictment, information, or similar document (in the case of a
criminal proceeding); or (iii) receipt or filing of a notice of

The court found Starr had a duty to defend PSI because:

“[t]he search warrant was a written order demanding non-monetary
relief in the form of PSI’s obligation to turn over numerous files and
records. Both the warrant and the subpoena were a result of legal
proceedings that required a finding of probable cause, leaving no
question that the government had identified PSI as a target for
criminal and civil liability.”

Tags: Virginia, D&O, duty to defend, search warrant, subpoena

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Contract exclusion bars municipal insurer’s claim for coverage under E&O policy for settlement payment to its own insured

October 29th, 2013 — 8:11pm


by Christopher Graham and Joseph Kelly

Scottsdale Insurance Company v. Alabama Municipal Insurance Corporation, Case No. 2:11-cv-668-MEF (M.D. Ala. Sept. 16, 2013)3

Scottsdale issued a professional liability policy to Alabama Municipal Insurance Corporation (“AMIC”). AMIC is a non-profit mutual insurance company that issues insurance policies to Alabama governmental entities.

AMIC issued an insurance policy to the Town of Woodland, Alabama that covered, in pertinent part, property damage caused by an accident resulting from the use of a covered automobile with a $2 million occurrence limit. On November 24, 2009, a covered automobile was involved in a single-vehicle accident in Georgia resulting in injuries to two passengers and ultimately one passenger’s death. The passengers sued the driver and and the Town of Woodland in Georgia; AMIC defended; and the passengers won a $4 million judgment. Subsequently, the Georgia court issued a declaration that AMIC’s $2 million limit applied rather than the $100,000 per occurrence limit under Alabama’s law that limits municipal liability. AMIC had argued it only would be liable for $200,000 under that Alabama law — $100,000 for the driver and $100,000 for the Town.

AMIC, the driver, and the Town subsequently: (1) filed suit in Alabama seeking a declaration that the Alabama limit on municipal liability applied to the Georgia judgment; and (2) appealed the Georgia declaratory judgment. Argument on the Georgia appeal was set for July 14, 2011.

Meanwhile, on January 24, 2011, the passengers sued AMIC for bad faith failure to settle within policy limit, asserting standing to sue under AMIC’s insurance policy. The passengers sought $1.99 million for AMIC’s rejection of its earlier settlement demand (passengers had offered to settle for $2 million). The passengers went on to win the $4 million judgment after AMIC rejected its demand. The passengers in their bad faith case sought the excess $2 million of the $4 million verdict from AMIC.

AMIC tendered the bad faith suit to Scottsdale. NAMICO was Scottsdale’s administrator for AMIC’s claim. NAMICO defended under a February 2, 2011 general reservation of rights. NAMICO subsequently issued a specific reservation of rights letter that listed the contractual obligation exclusion, among other exclusions, as a potential reason to deny coverage. NAMICO and defense counsel expressed doubt that the Alabama law would be found to apply.

The passengers offered to settle the bad faith case for $2 million. AMIC still felt strongly that the Alabama law would apply so it didn’t want to settle. NAMICO in turn raised the “hammer clause” from Scottsdale’s policy under which Scottsdale can stop defending a claim if its insured refuses to accept a settlement recommended by Scottsdale. NAMICO warned AMIC that if it didn’t agree to settle, NAMICO would stop defending and that AMIC would be responsible for its own defense.

AMIC then offered to pay $200,000 towards settlement (the amount it at least owed if the Alabama law applied) and split the remaining $1.8 million settlement payment with Scottsdale. Scottsdale agreed but reserved its right to recover its $900,000 payment. The passengers bad faith subsequently settled for $2 million and Scottsdale sought a declaratory judgment that it wasn’t obligated to pay its share of the settlement because of the Scottsdale policy’s “contractual obligation” exclusion.


Scottsdale’s policy covered “all LOSS resulting from a CLAIM alleging an act, error or omission in the performance of PROFESSIONAL SERVICES…”; and among the “PROFESSIONAL SERVICES” covered by the policy are “claim handling and adjusting.”

Scottsdale’s policy excludes coverage for:

I. Any CLAIM arising from, based upon, attributable to, or related in any way (directly or indirectly) to any contract obligation, whether real or alleged, assumed by or imposed upon an INSURED arising out of:

  1. any policy or contract of insurance, reinsurance, insurance pool, suretyship, annuity or endowment; or
  2. any written contract, unless the INSURED would have been liable in the absence of such contract.

Scottsdale’s policy also contained the hammer clause mentioned above.


As a threshold matter, the court rejected AMIC’s argument that the initial general reservation of rights was too general to deny coverage and that the subsequent specific reservation of rights was untimely. The court noted that under Alabama law, “a general reservation of rights is sufficient to allow an insurer to later deny coverage under a specific policy exclusion” and, thus, the general reservation of rights was sufficient to reserve Scottsdale’s right to deny coverage.

AMIC argued that the contract exclusion doesn’t apply to exclude coverage because it renders Scottsdale’s coverage illusory. AMIC argues that since it conducts all its business through insurance contracts, if liability incurred under insurance contracts is excluded, then there’s no coverage under the policy.

The court rejected AMIC’s argument that the exclusion makes Scottsdale’s coverage illusory, noting that the policy provides coverage for errors and omissions arising from claims handling and the exclusion “simply distinguishes between liability incurred by AMIC for breach of contract with its insureds, and liability incurred for negligent acts and omissions committed by AMIC in handling claims arising from its insurance contracts.” The court further stated “the policy does not require Scottsdale to take the place of AMIC with respect to AMIC’s insurance contracts.”

AMIC argued further that the contract exclusion doesn’t apply to exclude coverage because it was sued for bad faith — a tort — rather than for breach of contract. The court rejected this argument as well, noting that the relevant inquiry is whether AMIC’s loss arose out of its contractual obligations to its insured; the bad faith suit arose out of AMIC’s refusal to meet its contractual obligations to its insureds.

Tags: Alabama, E&O, insurance, contract exclusion

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No coverage under Insuring Agreement E of Financial Institution Bond; Loss didn’t directly result from forged guaranty and Bank didn’t extend credit on the faith of forged guaranty

October 25th, 2013 — 6:11pm


by Christopher Graham and Joseph Kelly

BancInsure, Inc v. Highland Bank (D. Minn. Sep. 23, 2013)

BancInsure sought a declaratory judgment against its insured, Highland Bank, that the Bank’s loss is not covered under the Financial Institution Bond BancInsure issued to the Bank.

In 2005, Equipment Acquisition Resources (“EAR”) and First Premier Capital, LLC entered into an equipment lease under which First Premier would provide manufacturing equipment to EAR. First Premier secured personal guarantees from EAR’s principals as a condition precedent to the lease.

In 2006, First Premier went to the Bank on EAR’s behalf seeking to borrow $3 million to finance the lease. First Premier and the Bank entered into a “Collateral Assignment of Lease Payments and Equipment” agreement under which First Premier assigned to the Bank “rental payments due or to become due under the Lease” and all of First Premier’s “rights, title and interest in and to the personal property subject to the Lease.”

Before entering into the agreement with First Premier, the Bank: didn’t contact EAR or its principals; didn’t conduct a background check on EAR’s principals — despite First Premier informing the Bank about one of the principal’s prior conviction for lease fraud; and didn’t inspect the equipment or otherwise determine its liquidation value.

After 20 months or so, EAR stopped making payments. The Bank then learned that the leased equipment didn’t exist and that the non-existent equipment was pledged to multiple lenders. The Bank also learned that the guaranty of one of EAR’s principals was likely forged.

In January 2010, Highland Bank sued First Premier for default under their agreement. The Bank won but was unable to collect on its judgment. The Bank subsequently submitted a Proof of Loss to Bancinsure under the FIB seeking coverage, in pertinent part, under Insuring Agreement E which provided:

Loss resulting directly from the Insured having, in good faith, for its own account or for the account of others, (1) acquired, sold or delivered, given value, extended credit or assumed liability on the faith of any original … (f) Corporate, partnership or personal Guarantee, [which] … (i) bears a signature of any maker, drawer, issuer, endorser, assignor, lessee, transfer agent, registrar, acceptor, surety, guarantor, or of any person signing in any other capacity which is a Forgery, … (2) guaranteed in writing or witnessed any signature upon any transfer, assignment, bill of sale, power of attorney, Guarantee, endorsement or any items listed in (1)(a) through (h) above. This includes loss resulting directly from a registered transfer agent accepting or instructions concerning transfer of securities by means of a medallion seal, stamp, or other equipment apparatus which identifies the Insured as guarantor, as used in connection with a Signature Guarantee Program, but such use or alleged use of said medallion seal, stamp, or other equipment apparatus was committed without the knowledge or consent of the Insured, and the Insured is legally liable for such loss, (3) acquired, sold, or delivered, given value, extended credit or assumed liability on the faith of any item listed in (1)(a) through (d) above which is a Counterfeit. Actual physical possession of the items listed in (1)(a) through (i) above by the Insured, its correspondent bank or other authorized representative is a condition precedent to the Insured’s having relied on the faith of such items. A mechanically reproduced facsimile signature is treated the same as a handwritten signature.

Bancinsure denied coverage because the Bank didn’t have actual physical possession of the guaranty. That same day, Bancinsure filed suit seeking a declaration of no coverage.

The Bank successfully moved for partial summary judgment as to whether First Premier was its “authorized representative” such that the “actual physical possession” requirement of Insuring Agreement E was met.

The Bank and BancInsure subsequently filed competing motions for summary judgment.

Loss “resulting directly from”

BancInsure argued there was no loss “resulting directly from” the Bank’s extension of credit on the faith of the forged guaranty, because irrespective of the forgery, the Bank would’ve suffered a loss.

The Bank argued that there was a loss “resulting directly from” its extension of credit on the faith of the guaranty because the guaranty caused it to enter into the transaction and extend credit where it otherwise wouldn’t have.

The court — citing to Alerus Fin. Nat’l Ass’n v. St. Paul Mercury Ins. Co., No. A11-680 (Minn. Ct. App. Jan 30, 2012) noted that “loan loss is not directly caused by reliance on forgeries constituting or referencing collateral when the collateral is worthless at the time of the loan.” The court then found that the Bank’s loss resulted directly not from the forged guaranty, but from the worthlessness of the collateral and guaranty. There was no equipment and the guarantor had no assets.

Extended credit…on the faith of any original…personal guarantee

The Bank argued that it relied on the faith of the guaranty in extending credit. BancInsure countered that the Bank never had a legal interest in the guaranty (given to First Premier) and that it never examined the original guaranty. The Court agreed with BancInsure because: (1) the guaranty was executed by First Premier and the guarantor and promised repayment to First Premier; (2) the lease was executed between EAR and First Premier without reference to the Bank; (3) the agreement between First Premier and the Bank only transferred First Premier’s interest in the rent due. The court accordingly found that the Bank didn’t extend credit on the faith of the guaranty.


The court granted BancInsure a declaration that there was no coverage under Insuring Agreement E because the loss didn’t directly result from the forged guaranty and the Bank didn’t extend credit on the faith of the forged guaranty.

The court also found that the Bank wasn’t entitled to coverage under the “reasonable expectations” doctrine.

Lastly, the court found that since there’s no coverage, the Bank’s claim for breach of good faith and fair dealing fails.

Tags: Minnesota, Financial Institution Bond, Insuring Agreement E, forgery

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Legal malpractice claims aren’t assignable under Maryland law; bad faith claim against insurer-appointed attorneys dismissed

October 15th, 2013 — 8:16pm


by Christopher Graham and Joseph Kelly

Cook v. Nationwide Insurance Company, Case No. PWG-13-882 (D. Md. Aug. 23, 2013)

This legal malpractice case results from an auto accident tort case.

Alvarez, while driving drunk and with a suspended license, crashed into plaintiff Cook’s car, injuring Cook. Cook filed suit against Alvarez. Nationwide, Alvarez’s auto insurer, appointed defendant attorneys to represent Alvarez. Cook offered to settle the case for $71,000 which was above the $50,000 policy limit. Nationwide refused. The case went to trial and Cook received a jury verdict in his favor in excess of $892,000. Alvarez subsequently assigned “any and all rights he has against [Nationwide and attorney Defendants,” of any and all claims that he has against them as a result of actions” alleged in the complaint in the tort case.

Cook then filed suit against Nationwide and the defendant attorneys for “bad faith/negligence” alleging that they should’ve settled. Defendant attorneys successfully moved to dismiss Cook’s complaint.

Legal malpractice

The court also dismissed Cook’s legal malpractice claim against defendant attorneys, citing to Maryland case law for the proposition that an attorney “is liable for his negligence … to his immediate employer only, and not to the latter’s assigns or any third person, between whom and the attorney there is no privity.”

The court noted that under Maryland law there must be strict privity between the parties for a legal malpractice claim. The rationale — according to the court — is that “[a]n attorney’s loyalty would be compromised … if she were at risk of an assigned malpractice claim brought be her former adversary.”

The court additionally noted if legal malpractice claims are assignable, then attorney defendants may be required to violate attorney-client privilege by disclosing confidential information to successfully defend such a claim.

Bad faith

The court dismissed Cook’s bad faith claim against defendant attorneys.

The court noted that:

  • “It is well-settled Maryland law that an insured has a cause of action against its insurance company for bad faith refusal to settle a claim within policy limits.” citation omitted

The court also noted the rationale behind bad faith claims against an insurer that controls the defense, stating:

  • “[i]t is when the insurer undertakes to provide a defense that it has “the exclusive control . . . of . . . settlement and defense of any claim or suit against the insured,”and it is at this stage that the “potential, if not actual, conflict of interest giving rise to a fiduciary duty” comes into being.” citation omitted

The parties didn’t present (and the court didn’t find) any Maryland cases permitting a bad faith claim against attorneys appointed to defend by an insurer.

Regardless, the court found that Cook had no bad faith claim against defendant attorneys because there were no allegations that defendant attorneys knew about Cook’s settlement offer or had authority to accept it. The defendant attorneys didn’t have control over the settlement.

Tags: Maryland, legal malpractice, assignability, bad faith

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Lack of expert testimony = no causation and a doomed legal malpractice claim

October 15th, 2013 — 6:35pm


by Christopher Graham and Joseph Kelly

Samson v. Ghadially Case No. 14-12-00522-CV (Tx. Ct. of Appeals Aug. 20, 2013)

Attorney was sued by client after declining to file a medical malpractice suit against former client’s surgeon.

In November 2006, the surgeon inserted screws into client during a bone graft surgery without his consent. Client met with attorney in 2008 regarding a potential medical malpractice suit. In August 2008, attorney sent client a letter stating that he couldn’t locate an expert to file an expert medical report which is a required for medical malpractice cases in Texas. The letter also reminded client of the November 2008 statute of limitations deadline for such a suit.

Client filed the medical malpractice suit pro se, but that suit was dismissed because of the lack of an expert medical report.

In May 2010, client filed this suit alleging fraud, negligence, breach of fiduciary duty, and breach of contract. Client’s complaint essentially argues that attorney committed malpractice by agreeing to pursue client’s medical malpractice claims and then changing his mind two months before the statute of limitations expired.

Attorney filed a motion for summary judgment arguing, in pertinent part, that client couldn’t establish causation. The court agreed stating a legal malpractice plaintiff must satisfy the “suit within a suit” requirement – meaning that plaintiff must prove he would’ve won his medical malpractice case if not for the attorney’s malpractice. The court stated “[e]xpert testimony is required whenever the connection between the alleged acts of malpractice and the harm suffered by the client is beyond a jury’s common understanding.”

Here, client failed to prove — via expert testimony or otherwise — that he would’ve prevailed in his medical malpractice case if attorney hadn’t delayed in informing client that an expert couldn’t be found.

Tags: Texas, legal malpractice, causation, expert testimony

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