Although not strictly speaking a “legal malpractice” decision, the Eastern District of Pennsylvania’s decision in Travelers Indem. Co. v. Stengel, 2011 WL 6739458 (E.D. Pa. 2011), is of interest in terms of legal malpractice defense, and the case history shows how convoluted these actions can get. The case was a contribution action arising out of an underlying legal malpractice action, which arose out of an underlying wrongful use of civil proceedings (Dragonetti) action, which in turn arose out of a zoning appeal.
Travelers was pursuing the action as an assignee of the rights of a couple by the name of Sanford. Stengle represented the Sanfords in bringing a zoning appeal, which included a RICO claim against the T members of the Board of Supervisors, although the Sanfords filed the RICO claim pro se, Stengle drafted it. Immediately thereafter, representation was taken over by Stengle’s co-defendant Berry who filed an amended RICO complaint. The amended complaint was dismissed, and two members of the Board brought a wrongful use of civil proceedings action against the Sanfords. The attorneys assigned by the Sanfords’ insurer, the Nelson firm, did not file an answer to the Supervisor’s complaint, and a judgment was entered against the Sanfords for $3,030,000. The Sanfords then brought a legal malpractice action against the Nelson firm. Travelers, as insurers for the Nelson firm settled the legal malpractice action and the wrongful use action by paying the Supervisors $1,500,000. The Travelers v. Stengle case, seeking contribution from Stengle and Berry, followed.
The court granted summary judgment in favor of Stengle and Berry, finding that the Nelson firm and Stengle and Berry were not joint tortfeasors, and as they were not joint tortfeasors there could be no contribution. The court reasoned Stengle and Berry owed the Sanfords a different duty than the Nelson firm, that different experts would be needed to prove the two cases, and that the acts were severable in time. Importantly, “neither individual was able to guard against the acts of the other.” The court also found that the harm was so far removed from Stengle and Berry’s actions that it was not foreseeable and could not constitute proximate cause.
In Javaid v. Weiss, 2011 WL 6339838 (M.D. Pa. 2011), the court granted dismissal of the plaintiffs legal malpractice claims finding that the complaint was too speculative. The court also found that defendants had raised significant questions about whether the claim was barred by the two year statute of limitations for a professional liability claim. Although plaintiff had asserted a separate count of breach of contract, the court found he had not “adequately pled a separate claim for breach of contract, but has instead simply repackaged his allegations of negligence and recast them as a breach of contract claim.” This decision is a strong reiteration of the concept that a legal malpractice claim sounding in contract must be based on the breach of an explicit contractual term.
What is the the malpractice or professional liability avoidance takeaway from these cases? There are two obvious lessons from the Travelers case: 1) do not over-plead, and 2) file answers to complaints in a timely manner. The case also will be useful when defending legal malpractice or wrongful use of civil proceedings claim which include cross-claims for contribution. From the Javaid case we learn that if you do not breach an explicit contract provision, you will have a good statute of limitations defense for cases that are filed more than two years after the alleged negligence.
-Josh J.T. Byrne, Esquire