The Law Firm of Jordan Coyne & Savits, L.L.P. -- Blog

In Akridge v. Gallaudet University, No. 06-0346 (D.D.C. Aug. 3, 2010), Judge Urbina granted summary judgment to defendant Gallaudet University. The plaintiff, a hearing-impaired African-American male employed at the university, had aplied for the position of Career Center Director. Although the plaintiff was among 13 out of 52 applicants who were interviewed by the screening committee, the committee selected a non-disabled, white male for the position. The screening committee had ranked plaintiff the lowest of the 13 interviewed candidates.

Plaintiff filed an EEOC complaint, alleging that defendant had discriminated against him on the basis of his race and disability. Plaintiff also alleged retaliation, because of an internal race discrimination complaint he filed in 1998. The EEOC issued a dismissal and a "right-to-sue" letter.

Plaintiff then filed suit, alleging defendant intentionally discriminated against him on the basis of his race and disability, and retaliated against him in violation of Title VII and the ADA. The allegedly discriminatory actions include delaying plaintiff's employment advancement, failing to award plaintiff the Director position, and condoning retaliatory and hostile behavior directed toward plaintiff after he sought employment advancement.

Defendant moved for summary judgment, on the grounds that plaintiff did not commence his lawsuit in a timely manner, failed to exhaust his administrative remedies with respect to his hostile work environment claim, failed to allege any hostile conduct as a matter of law, and failed to allege any facts in support of his claim of retaliation. The Court granted the university complete summary judgment.

Among other things, the Court's opinion included an interesting discussion of plaintiff's hostile work environment claim. Plaintiff's EEOC charge did not specifically make this claim. The Court acknowledged that the exhaustion of administrative remedies is less stringent for hostile work environment claims, and that a plaintiff may adequately exhaust administrative remedies without specifically alleging a hostile work environment claim in his EEO charge, so long as the hostile work environment claim is like or reasonably related to the allegations in the formal EEOC complaint and grows out of such allegations.

Here, however, the plaintiff did not rely on the one discrete act of discrimination alleged in the EEOC charge -- failure to hire him for the Director position -- in support of his hostile work environment claim. Therefore, plaintiff failed to demonstrate that his hostile work environment claim is "like or reasonably related to" the allegations in his EEOC charge.

Posted by David B. Stratton on 08/31/2010 at 05:24 PM
District of Columbia • Permalink

Trial Court’s Refusal to Allow Plaintiff To Name Substitute Expert Affirmed by D.C. Court of Appeals

In French v. Levitt, No. 09-CV-94 (D.C. July 8, 2010), the D.C. Court of Appeals affirmed the trial court's denial of plaintiff's motion to designate a new liability expert and for a continuance. However, this result was based on an unusual combination of factors that is unlikely to recur often.

The plaintiff had sued the defendant physicians for failure to diagnose a bone infection on her left foot following an ankle fusion. The plaintiff alleged that the failure to make this diagnosis resulted in a below-the-knee amputation in January, 2005. In her medical malpractice action, the plaintiff identified a medical expert early in the case, but about five weeks before trial, the plaintiff filed an emergency motion to allow for additional limited discovery, in which she asked the trial court to allow her to designate a replacement expert.

The plaintiff's expert had relocated, first to Guam, then to Israel, and had legal problems. Plaintiff's motion was initially denied due to a procedural defect, but then was refiled the day before the pretrial conference. At the pretrial conference, the trial court denied the motion. Subsequently, plaintiff's counsel conceded that his client was unable to meet her burden of proof with a liability expert, and based on that, the trial court dismissed the case.

On appeal, the issue was whether the trial court abused its discretion by denying the motion to, in effect, designate a new expert and for a continuance. The Court of Appeals affirmed the trial court's discretionary decision, and considered the following factors.

The trial court had weighed the five factors required by D.C. precedent. The Court of Appeals also noted that the defendants had already deposed the plaintiff's expert, and had done a de bene esse deposition of their own expert. The plaintiff was unable to proffer a new expert five weeks before trial, much less make a proffer of the opinions of the substitute expert. Therefore, granting the motion would have required the defendants to depose again their own experts, would have required the defendant physicians to schedule additional time and expense for a delayed trial, and would potentially subject them to different allegations of negligence at a late stage of the litigation. Further, the plaintiff had known of issues relating to her expert for months before she filed the motions before the trial court. If the trial court were to grant a continuance, and allow the plaintiff to find a new expert, the case probably would have gone on for almost another year.

Posted by David B. Stratton on 08/30/2010 at 02:02 PM
District of Columbia • Permalink

In Maryland workers’ compensation claim, employer must show actual prejudice from late notice

In Melody Elste v. ISG Sparrows Point, LLC et al., ___Md. App.___, ___A.2d___(2009), Maryland's intermediate appellate court examined when an employer is "prejudiced" by an employee's failure to provide notice of an accidental injury within ten days of the injury's occurrence as required by Md. Code (2008 Repl. Vol., 2009 Supp.), secs. 9-704 and 9-706 of the Labor and Employment Article. The court determined that prejudice is established when an employer produces concrete evidence that indicates that the employee's failure to provide notice of his or her injury within ten days of the injury's occurrence caused actual harm to the employer's legal interests.

Melody J. Elste twisted her right knee on July 27, 2006 while working a safety shift at ISG Sparrows Point ("Sparrows Point"). Ms. Elste did not report her injury to Sparrows Point until 19 days later, on August 14, 2006, upon returning from a one week camping vacation. On September 9, 2006, Ms. Elste underwent knee surgery and on October 10, 2006, she filed a claim for workers compensation benefits.

The Workers Compensation Commission awarded Ms. Elste temporary total disability benefits. Sparrows Point sought judicial review of the Commission’s award in the Circuit Court for Baltimore City. During the jury trial for the matter, Ms. Elste moved for judgment at the close of Sparrows Point's case, and again at the close of all evidence, arguing that Sparrows Point had produced "no evidence whatsoever" that it was prejudiced by her failure to provide it with notice of her injury within ten days of the injury's occurrence. The circuit court judge denied the motions and the jury concluded that Ms. Elste had not given Sparrows Point timely notice of her injury. Ms. Elste filed a motion for JNOV, which was also denied. An appeal to the Court of Special Appeals ensued.

Before the Court of Special Appeals, Sparrows Point argued that it was prejudiced by Ms. Elste's failure to notify it of her injury within ten days of her accident because it was denied the opportunity to timely investigate the accident and to evaluate Ms. Elste's pre-vacation condition. The Court of Special Appeals rejected these arguments, holding that "an employee’s mere participation in [an] intervening activity, or an employer's inability to conduct an immediate investigation, cannot, by themselves, constitute prejudice." The court emphasized that under secs. 9-704 and 9-706 of the Labor and Employment Article, prejudice is established only when an employer offers specific evidence regarding how an employee's failure to provide notice of an injury harmed the employer's legal interests. The court noted that, in this case, such evidence could have included that a change had occurred in Ms. Elste's condition, the scene of the accident, or the memory of one of the witnesses. Due to the lack of such evidence, the Court of Special Appeals held that the trial court erred in denying Ms. Elste's motion for judgment and her motion for JNOV.

Posted by Mandy Wolfe on 11/02/2009 at 08:29 PM
Maryland • Workers Compensation • Permalink

Virginia Supreme Court addresses superseding cause in legal malpractice

In Williams v. Joynes, 278 Va 57, 677 S.E.2d 261 (2009), the Supreme Court of Virginia reversed the Circuit Court's ruling that plaintiff's failure to file a personal injury action in a foreign jurisdiction was a superseding event sufficient to sever the link of proximate causation between the defendants' failure to timely file a personal injury action in Virginia and the plaintiff's loss of his personal injury claim.

The personal injury action arose out of an automobile accident that occurred when a truck driven by a Maryland resident hit a car driven by a Virginia resident and caused that car to hit the plaintiff. The defendant attorneys were retained to file the personal injury action, but failed to do so within Virginia's two year statute of limitations. The malpractice action arose as a result of the defendant attorneys' failure to timely file the Virginia personal injury action.

The defendant attorneys notified the plaintiff that he should find a Maryland attorney to advise him as to whether he could file a Maryland action against the Maryland resident based on the three year statute of limitations. Plaintiff was unable to find an attorney to take the Maryland case because of proof problems arising out of the fact that Maryland had no subpoena power over the Virginia witnesses.

The Circuit Court held that Williams' decision not to file suit in Maryland was an intervening act that severed any connection between the negligent act of the defendants and the loss claimed by plaintiff.

The Supreme Court of Virginia reversed on the grounds that the plaintiff's intervening act was set in motion by the defendant attorney's failure to timely file the action in Virginia. The Court stated that an intervening act will never be deemed a superseding cause if the intervening act was set in motion by the initial tortfeasor's negligence.

Additionally, the Court found that the Circuit Court failed to consider that, as a result of the defendant attorneys' negligence, the plaintiff had forever lost his claim against the Virginia resident who could not be sued in Maryland.

Posted by Sara Allenson on 09/05/2009 at 06:54 PM
Legal Malpractice • Virginia • Permalink

Legal Malpractice Claim Against Immigration Attorney Is Dismissed

In Baserva v. Remes, et al, 2009 U.S. Dist. LEXIS 63597 (E.D. Va. 2009), a legal malpractice action, the plaintiff, a non-U.S. citizen, sued his former attorney for damages arising out of the plaintiff's detention by immigration authorities.

Mr. Baserva filed suit in 2008 against his attorney in connection with two separate immigration matters, a 1993 deportation proceeding and a 2005 matter where Baserva was detained by immigration authorities.

Granting Defendant's Motion for Summary Judgment, in part, the U.S. District Court held that Baserva's malpractice claim for the 1993 representation was barred by the three-year statute of limitations. Defendant's representation terminated when he withdrew as counsel in 1993, thereby defeating Baserva's argument that the statute of limitations was tolled due to Defendant's continuous representation.

The Court also dismissed the 2005 fraud count as time barred. Fraud has a two-year statute of limitations in Virginia. The Court then dismissed the 2005 counts for negligence and gross negligence. Even though legal malpractice claims sound in tort, they are actually breach of contract claims.

On the remaining legal malpractice and breach of contract claims, the Court held that a reasonable jury could find that Defendant breached his duty to Baserva by waiting three-months to file the appropriate forms and motions with immigration authorities. However, Baserva's legal expert failed to opine as to whether Defendant's failure to file a motion to re-open the immigration proceedings proximately caused Baserva's detention, leaving a question as to causation. Baserva argued that expert testimony was not necessary. Defendant asserted that expert testimony was required to prove that filing a motion would have prevented Baserva's detention. Defendant further argued that such testimony was unlikely to establish causation since granting any such motion is discretionary, and Immigration might not have granted the motion even if it had been filed.

Ultimately, the Court held that expert testimony was required to prove causation and granted Baserva's request for leave to supplement his expert report provided that he pays all costs since discovery had closed.

In a subsequent ruling, the court granted the defendant's motion for summary judgment on the grounds that the plaintiff had failed to establish that the failure to file the motion was a cause of the plaintiff's arrest. In so ruling, the court noted that the defendant did not "cause" the arrest, as the arrest was an independent decision by the immigration authorities; the plaintiff was aware beforehand that he could be subject to arrest; no evidence was introduced demonstrating that the Department of Homeland Security would have joined in the motion, which would have been necessary to resolve the underlying issue; and no evidence was presented to demonstrate that the motion, if filed, would have prevented the arrest. As the plaintiff could not demonstrate that the alleged failure of the defendant to file the motion was in fact a cause of the plaintiff’s damages, summary judgment was entered for the defendant.

Posted by Rob Anderson and Padraic Keane on 08/31/2009 at 11:06 PM
Legal Malpractice • Virginia • Permalink

D.C. Court of Appeals Declines To Follow Exhaustion of Appeals Rule in Legal Malpractice Action

In Bleck v. Power, 955 A.2d 712 (D.C. Sept. 4, 2008), the D.C. Court of Appeals affirmed the trial court's ruling that the plaintiff's malpractice suit was barred by the three-year statute of limitations. The issue was when the cause of action for legal malpractice accrued.

The legal malpractice suit arose out of a claim under a long-term disability policy. The plaintiff's claim for LTD benefits was denied, and she then retained an attorney to represent her in seeking reconsideration. On May 14, 1999, the insurer rendered a final decision denying the claim. The attorney agreed to bring a lawsuit on the plaintiff's behalf. However, the lawsuit was not filed until May 10, 2002, almost three years later.

The insurer moved to dismiss the suit as time-barred by a policy provision specifying that any action to recover benefits had to be brought within two years from the end of the time within which proof of total disability was required. The trial court granted the motion to dismiss.

The plaintiff discharged the attorney and hired new counsel, who filed a motion for reconsideration. This motion was denied on Jan. 7, 2004, and there was no appeal.

Nearly three years later, on Jan. 5, 2007, the plaintiff filed a legal malpractice action against the defendant in D.C. Superior Court. The defendant attorney moved to dismiss the complaint as barred by the three year statute of limitations. The defendant argued that the limitations period began to run on July 29, 2003, when the court dismissed the plaintiff's suit against the insurer. The plaintiff argued that the statute of limitations did not begin to run until her motion for reconsideration was denied on Jan. 7, 2004.

The trial court granted the defendant's motion to dismiss.

On appeal, the D.C. Court of Appeals affirmed.

The Court reasoned that the plaintiff could have initiated a malpractice actioin against the attorney immediately after the contractual deadline was missed for commencing an action against the disability insurer. In cases where an attorney has missed a deadline for filing suit, the injury occurred when the client's action was legally subject to dismissal, rather than the actual, but fortuitous, date of dismissal.

D.C. does follow the continous representation rule, under which a client's legal malpractice claim does not accrue until the attorney's representation concerning the particular matter in inssue is terminated, even if the client knows before then that her attorney has made an injurious error. However, in this case, the plaintiff by August 2003 knew that the attorney had missed the contractual filing deadline, and she had replaced him with new counsel. This was more than three years before she filed suit.

The plaintiff argued that the statute of limitations on her legal malpractice claim was tolled while her timely Rule 59(e) motion was pending, because there was no final, appealable judgment until the court denied that motion. The D.C. Court of Appeals rejected that argument. In situations where an attorney's error results in a loss at trial, the Court has specifically declined to adopt an "exhaustion of appeals rule", pursuant to which the cause of action for malpractice would accrue only when the adverse judgment is affirmed on appeal.

Posted by David B. Stratton on 04/21/2009 at 01:07 PM
District of Columbia • Legal Malpractice • Permalink

Award of Permanent Partial Impairment by Virginia Commission Is Voided On Appeal

In Hitt Construction v. Pratt, 53 Va. App. 423, 672 S.E.2d 904 (Va. App. Feb. 17, 2009), the Court held that for the Virginia Workers Compensation Commission to exercise its review authority under the Act, when that authority is timely challenged, it must be composed of three statutorily authorized members. As a result, a decision that had concluded that claimant suffered permanent impairment was remanded for review by a properly constituted commission.

The majority of the commissions had appointed a deputy to serve as the third commissioner. However, the Court noted that no statute grants that authority.

The Court emphasized that the commission's decision in this case was "voidable", not void. The authority of the commission to exercise its subject matter jurisdiction was compromised by its composition -- a composition not authorized by statute. While a challenge to the authority of the commission was subject to being waived, that challenge was not here waived. Rather, it was specifically raised to the commission by the employer's motion to reconsider and vacate award. Therefore, the case was reversed and remanded to the commission.

John H. Carstens, Esq. of Jordan Coyne & Savits, LLP represented the employer.

Posted by David B. Stratton on 04/10/2009 at 03:41 AM
Virginia • Workers Compensation • Permalink

In Virginia, An Error of Judgment, or Even Negligence, Does Not Show Bad Faith By Insurer

In Goldstein v. National Casualty Company, 2008 U.S. Dist. Lexis 58129 (W.D. Va. July 28, 2008), Judge Kiser granted the insurer's motion for summary judgment on an insurance bad faith claim.

The claim arose from an excess judgment. The insured was a truck driver who was involved in an accident as he was attempting to pull out of a lot and onto a major road. The other driver was killed, and his family brought suit for twenty-five million dollars. Liability was contested. The insurer sent the truck driver a reservation of rights letter, pointing out that the insurer would not be responsible payment of any amount in excess of the policy limits.

Defense counsel's assessment of the case was that there was a 55% chance of a defense verdict, and that a potential verdict range of $1,000,000 to $1,500,000 if plaintiff prevailed. There was a future loss of income claim of $884,000. However, defense counsel only recommended a settlement offer of $100,000. Prior to trial, the plaintiffs made a demand for policy limits of $1,000,000. This offer was rejected. Later, during trial, the plaintiffs reduced their demand to $925,000. The insurer did not make any increased offer.

The jury returned a verdict for $2.5 million. The insurer paid its $1,000,000 policy limits. Plaintiffs then offered to release the insured truck driver from his debt in exchange for his assignment to them of a bad faith claim against the insurer. The truck driver rejected the offer. After trying to settle the debt of $1.5 million with an offer of $7,000, the truck driver was forced to declare bankruptcy.

The truck driver's bankruptcy trustee then filed the action alleging bad faith by the insurer. The truck driver's deposition was favorable to the insurer, and included testimony that the truck driver told the insurer that it should not pay the policy limits and that the insurer did not owe the plaintiffs anything. He testified that he did not think there was any bad faith.

The Court granted the insurer's motion for summary judgment. The Court stated the applicable law as follows:

In Virginia, "an insured, in order to recover for an excess judgment on the ground that the insurer failed to take advantage of an opportunity to settle within the policy limits, is required to show that the insurer acted in furtherance of its own interest, with intentional disregard of the financial interest of the insured." State Farm Mut. Auto. Ins. Co. v. Floyd, 235 Va. 136, 366 S.E.2d 93, 97 (1988). Further, because bad faith requires proving more than simply negligence and because there is a presumption of good faith, the insured must make the necessary demonstration by clear and convincing evidence. Id. at 98.

The Court noted that the insurer did not make a settlement offer above $100,000 and did not accept an offer of $925,000 when the defense counsel suggested offering $100,000 -- even though she determined that there was a 45% chance of a verdict between $1,000,000 and $1,500,000. The Court found that this did not constitute clear and convincing evidence that the insurer acted in its own interest with intentional disregard of the insured's financial interest. The $100,000 offer seemed low given defense counsel's assessment, but the insurer was responsible for the next $900,000 and there was no certainty that the insurer would go beyond that. The Court concluded that in retrospect, the insurer's settlement offer "seems to have been an error of judgment, maybe even negligence. But it does not demonstrate bad faith."

John H. Carstens, Esq. of Jordan Coyne & Savits, LLP was lead counsel for the defense.

Posted by David B. Stratton on 04/09/2009 at 02:09 AM
Insurance • Virginia • Permalink

Legal Malpractice Suit in D.C. Dismissed For Plaintiff’s Lack of Expert Testimony

In Footbridge Limited Trust v. Zhang, 584 F.Supp. 2d 150 (D.D.C. Nov. 5, 2008), Judge Kollar-Kotelly dismissed a legal malpractice suit due to plaintiff's lack of expert testimony to support the claim. The suit arose out of a real estate closing in which the plaintiff had loaned certain non-party borrowers $1.5 million, through Cambridge Holdings Group. Cambridge Holdings at the time employed the defendant attorney. Plaintiff alleged that the defendant attorney's negligence was responsible for a seven month delay in the recordation of its security interests on the property that was purchased. During the seven month period, a bank recorded a mortgage as to which a security interest in the same property was pledged. Subsequently, the borrowers defaulted on their loan and filed for bankruptcy. The plaintiff attempted to foreclose on its security interests, but alleged that because of the intervening security interest of the bank, it received only $467,959 from the sale instead of $2.25 million.

The defendant attorney denied any responsibility for the delay in the recordation, and denied having attended the loan closing or having any knowledge of the loan transaction.

The defendant moved for summary judgment after the close of discovery, on the grounds that the plaintiff had not presented any expert testimony in support of its claims. The plaintiff argued that an attorney's failure to file a lien instrument for over one-half year following a real estate closing demonstrates a lack of skill and care so obvious that the trier of fact can find negligence as a matter of common knowledge.

The Court acknowledged that under D.C. law, there is a "common knowledge" exception to the requirement that a legal malpractice claim must be supported by expert testimony. The following examples are under the "common knowledge" exception: allowing the statute of limitations to run on a client's claim; permitting entry of default judgment against the client; failing to instruct the client to answer interrogatories; failing to allege affirmative defenses; failing to file tax returns; failing to follow the client's explicit instructions; and billing a client for time not spent providing services. Beyond that, the "common knowledge" exception is narrowly applied.

Here, the Court noted that the defendant attorney was not employed by the plaintiff, and that there is no allegation that the attorney received instructions from his own client which he failed to follow. The Court stated that "lt is entirely unclear what duties an attorney owes not only to his client, but to ta third-party, by merely attending a loan closing (even assuming that there was evidence that [defendant] attended the closing, which tere is not)." The Court also pointed out that on the issue of proximate cause of plaintiff's damages, to evaluate the parties conflicting evidence, the jury would need to know the effect that priority security interests have on properties subject to multiple unrelated liens, and particularly how those liens are paid when they are subject to a bankruptcy proceeding.

Accordingly, because the plaintiff did not produce a timely expert report, the Court granted the defendant's motion for summary judgment.

Dwight D. Murray, Esq. of Jordan Coyne & Savits, LLP participated in the defense of this matter.

Posted by David B. Stratton on 04/08/2009 at 02:12 PM
District of Columbia • Legal Malpractice • Permalink

Legal Malpractice Insurance Policy Rescinded Due To Fraud in the Application

In Minnesota Lawyers Mutual Ins. Co. v. Hancock, 2009 U.S. Dist. LEXIS 20536 (E.D. Va. March 3, 2009), Judge Henry E. Hudson granted summary judgment in an insurer's rescission action based on fraud in the application. The policy at issue was a legal malpractice insurance policy issued by Minnesota Lawyers Mutual Insurance Company. One of the partners in a two-man firm had for several years been engaged in a practice of embezzling money from his clients by moving money from his client escrow account to his operating account without his clients' authority and without having earned the money. The funds were used in part to cover the firm's overhead and operating expenses. The attorney voluntarily reported his misconduct and surrendered his law license to the Virginia State Bar, and subsequently he was indicted by a grand jury for embezzlement.

His partner was unaware of all this until reviewing pleadings filed by the Virginia State Bar. Meanwhile, applications for the firm's professional liability insurance had been submitted without any disclosure of the basis for possible claims. The insurer brought a rescission action, arguing that the misrepresentations made on behalf of the firm warrented rescission of the Policy, and moved for summary judgment.

The policy contained an exclusion for claims arising ouf of the dishonest, criminal, malicious or deliberately fraudulent act, error, or omission of the insured. However, that exclusion was qualified by an "Innocent Insured" provision, which afforded coverage for any insured who did not personally participate in or acquiesce to any actual or alleged dishonest, criminal, malicious, or deliberately fraudulent act, error, or omission of another insured.

The policy also contained language that specifically incorporated the application for coverage as part of the policy.

The defendant attorneys argued that because the application required the firm's representative to certify that "a reasonable inquiry has been made . . . to ensure the accuracy of all information contained herein", the firm had only been required to answer the application to the best of its knowledge. Therefore, defendants argued, the insurer must among other things demonstrate by clear proof that the insured's statements were knowingly false to obtain rescission.

The Court rejected that argument, saying that the provision imposed upon the firm an additional affirmative duty to investigate the truthfulness of the statements made to the insurer. That was not the equivalent of language permitting an insured to warrant that its statements are only true to the best of its knowledge. Accordingly, the insurer was not required to demonstrate that any of the insureds knowingly made a false representation; rather, the insurer only needed to demonstrate by clear proof that the application contained a false statement and that the false statement was material to the company's decision to issue the policy. The insurer easily satisfied its burden on those points.

The Court concluded by observing that the innocent partner's lack of awareness of the embezzlement did not prevent rescission of the policy as to all insureds. The policy did contain an Innocent Insureds provision which, absent rescission, may have afforded the innocent partner coverage under the facts of this case. But the policy's Innocent Insured provision did not reference or preclude the remedy of rescission for a material misrepresentation in the application. Therefore, the policy was rescinded as to all insureds notwithstanding the innocent partner's lack of personal knowledge of the embezzlement.

Posted by David B. Stratton on 04/07/2009 at 06:04 PM
Legal Malpractice • Virginia • Permalink

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