‘Collectibility’ Not a Limiting Component in Legal Malpractice Injury Quantities

Are a plaintiff’s damages in a lawful malpractice circumstance confined to the total they could have collected in a judgement in the underlying lawsuit that an legal professional was identified to have mishandled?

The Louisiana Supreme Courtroom mentioned ‘no’ in a case involving a woman’s malpractice fit in opposition to her legal professional who unsuccessful to file in a well timed way his client’s petition for damages following an car accident in which the customer was hurt.

In Elaine Ewing vs. Westport Insurance plan Corporation, Et Al., the court was questioned to “determine whether or not ‘collectibility’ is a suitable consideration in a lawful malpractice action,” Main Justice Bernette J. Johnson spelled out in an view issued Nov. 19.

According to Johnson’s summarization of the underlying case, Elaine Ewing had hired attorney Chuck Granger to symbolize her soon after she was wounded in an automobile accident on April 9, 2015. On April 4, 2016, Granger submitted a petition with the courtroom for damages on Ewing’s behalf but unsuccessful to ahead the petition for damages in the seven times the law needs. The petition was at last forwarded “after the one-year prescriptive period of time experienced passed,” the view states. Ewing’s vehicle incident match was subsequently dismissed she then submitted a legal malpractice action in opposition to Granger and his insurance company, Westport Insurance plan Corp.

Westport and Granger submitted a “motion for partial summary judgment asserting the courtroom must apply the ‘collectibility rule,’” alleging Ewing could not recover a increased total “than her opportunity restoration in the underlying own personal injury lawsuit.” It asserted that restoration against Granger should be capped at the plan restrict for the defendant in Ewing’s car damage go well with — $30,000. It was also stipulated that the vehicle accident fit defendant’s economical condition was these that he would have been not able fork out an sum in excessive of the $30,000.

Westport and Granger acknowledged the legal professional/consumer relationship concerning Ewing and Granger, and that Granger had breached the common of care. The trial courtroom granted a summary judgement and awarded Ewing a destruction sum of $30,000. The demo court concluded that Ewing sustained at the very least that total of hurt as a end result of the incident. It did not establish precise damages, finding the “issue moot owing to the grant of summary judgment in favor of the defendants on the situation of collectability,” the Supreme Court’s feeling states.

The appeals courtroom reversed, citing the Louisiana Supreme Court’s ruling “in Rodriguez v. Traylor, 468 So. 2d 1186, 1188 (La.1985) (holding ‘the wealth or poverty of a get together to a lawsuit is not a good thing to consider in the perseverance of compensatory damages.’)”

Johnson mentioned that the justification put forward for the “collectibility rule” is that the negligence of the legal professional did not trigger the client any far more hurt than the client would have been equipped to accumulate in the fundamental action.

“The main rationale is the perceived inequity if the plaintiff is in a position to get a judgment towards the attorney that is increased than the judgment the plaintiff could have collected from the underlying tortfeasor,” the impression states.

Just after a “review of the law and thing to consider of the parties’ arguments” and “based on Louisiana jurisprudence and general public policy, and looking at the deficiency of suitable statutory authority, we hold the collectibility rule is not relevant in legal malpractice conditions,” Johnson wrote.

“Ms. Ewing was only necessary to show she experienced an attorney-consumer connection with Mr. Granger that Mr. Granger’s representation was negligent and that Mr. Granger’s negligence prompted her some loss. The parties stipulated the to start with two factors had been contented. Also, Ms. Ewing glad her stress about the third ingredient,” the feeling states.

Johnson wrote that when the defendants did not assert “Ewing was expected to show collectibility as component of her claim, they do argue collectibility is a legitimate protection in a authorized malpractice lawsuit. We disagree. A lawful malpractice declare in Louisiana is a negligence claim.”

Collectibility can’t be made use of in “legal malpractice actions to limit the amount of damages normally owing to a legal malpractice plaintiff,” the the vast majority concluded. Two justices dissented — Justice William J. Crain and Justice James T. Genovese.