Allied Waste North America, Inc. v. Lewis, King, Krieg & Waldrop, P.C.
Docket: No. 3:13-00254
Court: District Court, M.D. Tennessee; March 20, 2015; Federal District Court
The case involves legal malpractice, breach of contract, and breach of fiduciary duty claims stemming from a $7.2 million jury verdict against Plaintiffs Allied Waste North America, Inc. and BFI Waste Services, LLC (collectively "Allied/BFI") in underlying state court litigation. Defendants include three law firms and certain members of those firms, with two firms hired to address issues allegedly caused by the first. A fire in 2002 destroyed the Nashville Thermal Transfer Facility, leading to a lawsuit by the Metropolitan Government of Nashville and Davidson County against Allied/BFI, among others.
Allied/BFI claims that the law firms failed to exercise reasonable care and breached their retainer contract, notably through three significant errors:
1. The law firms did not timely designate a crucial witness, despite Allied/BFI providing their name, resulting in sanctions that included an adverse inference instruction against Allied/BFI during the trial.
2. The law firms retained an expert, Jonathan Held, to testify on the facility's fair market value. However, Metro successfully moved to exclude his testimony, arguing that he was not a licensed appraiser and that the only measure of damages was repair cost. The trial judge agreed, which limited Allied/BFI's ability to present its defense regarding the facility's diminished value and future plans.
The memorandum addresses five pending motions related to these claims, with a detailed factual overview provided.
The Levine Orr Defendants were deemed ineffective in their representation, regardless of the trial court's ruling on the exclusion of Held's testimony. If the court's decision was correct, the defendants should have secured a competent expert to assess the facility's market value. If incorrect, they failed to gather alternative evidence to demonstrate that the repair costs were significantly lower. The deficiencies were not exclusive to the Levine Orr Defendants, as Allied/BFI engaged the law firm Lewis, King, Krieg, Waldrop, which monitored the trial and later expanded its role to assist with post-trial motions and potential appeals. Additionally, Allied/BFI retained Weinberg, Wheeler, Hudgins, Gunn, Dial, LLC for post-verdict representation. After the trial concluded with a $7.2 million verdict and judgment against Allied/BFI, motions for judgment notwithstanding the verdict and for a new trial were filed but denied. The appeals process led to the Tennessee Court of Appeals affirming the trial court's decisions, indicating that the issue regarding Held's testimony was waived and that the negative inference instruction was appropriate. The option for a discretionary appeal to the Tennessee Supreme Court was bypassed when the case settled for $8 million in July 2012, leading to the filing of a complaint on March 30, 2013.
Defendants have filed motions for summary judgment, asserting that the case is barred by the statute of limitations and that their actions, even if deemed malpractice, did not cause injury to Allied/BFI. Additionally, they seek judgment regarding the damages the Plaintiffs may claim. The court prioritizes the statute of limitations issue, which is critical to the case's outcome.
Legal malpractice claims in Tennessee must be initiated within one year from when the cause of action accrues, which occurs when: 1) the defendant is negligent; 2) the negligence results in a legally cognizable injury to the plaintiff; and 3) the plaintiff is aware, or should be aware through reasonable diligence, that the injury is due to the defendant's negligence.
Tennessee law employs a discovery rule for legal malpractice, consisting of two elements: the plaintiff must have suffered an actual injury from the defendant's wrongful conduct, and the plaintiff must know, or should have known, that this injury was caused by that conduct. An actual injury is defined as a loss of a legal right or the imposition of liability, and cannot be merely contingent on third-party actions. The statute of limitations begins when the plaintiff has actual knowledge of the injury or should have known of it through reasonable diligence.
There is no obligation for a plaintiff to know the exact nature of their legal claim or the specific breach involved; awareness of facts that would alert a reasonable person to an injury from wrongful conduct is sufficient to establish the discovery of a right of action. Delay in filing a suit until all injurious effects are known would undermine the purpose of statutes of limitations, which aim to reduce the uncertainties linked to stale claims. The parties agree on the general principles governing legal malpractice claims but dispute their application in this case. The plaintiffs assert that the statute of limitations was triggered by the Court of Appeals' decision, making their complaint timely as it was filed within a year thereafter. Conversely, the defendants argue that the limitations period began before the appellate decision, citing specific dates: January 20, 2011, when a motion for a new trial was received without specific arguments on testimony exclusion; September 23, 2011, when appellate briefs discussing waiver were emailed; or September 30, 2011, when billing entries related to waiver research were processed. Identifying when a legally cognizable injury occurs can be straightforward when a lawyer's negligence happens outside litigation, but is more complex during litigation. Generally, the entry of an adverse judgment marks the start of the statute of limitations for litigation malpractice. The plaintiffs’ argument that the limitations period began with the Court of Appeals decision aligns with the view that liability is fixed upon a final judgment. Until that decision, there was no established loss of legal rights or liabilities.
The injury element in a legal claim is not satisfied if it relies on the actions of a third party or is merely speculative. In the case referenced, Metro's argument regarding Allied/BFI's waiver was dependent on the appellate court's agreement, making it only a possibility until the court ruled on the waiver issue. The plaintiff's claim became time-barred due to the failure to reissue service of process, leaving no option to revive the action. Even if the Court of Appeals sided with Metro on waiver, it did not guarantee affirmation of the Held exclusion. Tennessee appellate procedures stipulate that issues for appeal must be raised in a new trial motion to avoid waiver, but errors affecting substantial rights can still be considered even if not previously raised. There is a general principle that the statute of limitations begins to run from the final decision on the merits, but this can be overly simplistic due to potential litigation missteps. The Tennessee Supreme Court has ruled against tolling the statute of limitations until all appellate proceedings are concluded when a malpractice claim depends on the outcome of an ongoing lawsuit. Ultimately, the defendants seeking summary judgment did not meet their burden of proving that the plaintiffs discovered or should have discovered the basis for a malpractice claim by any of the proposed early dates. The determination of whether a claim is barred by the statute of limitations is typically a legal question, but the question of when a claim accrued may be a fact for the jury or a legal determination for the court.
Tennessee courts differentiate between factual and legal questions regarding the accrual of a cause of action and the statute of limitations. If evidence is conflicting or unclear, the jury determines the accrual time as a question of fact; if evidence is undisputed, the court decides it as a question of law. Additionally, when a plaintiff discovers or should have discovered a cause of action, this is typically a question of fact for the jury, as is whether the plaintiff exercised reasonable care in discovering an injury within the limitations period.
In the case at hand, defendants assert that the statute of limitations began on January 20, 2011, when an email regarding a Motion for New Trial was sent to Casey and her supervisor, Dave Spruance. Despite Spruance confirming he read the brief, his knowledge of potential waiver is limited, and waiver was not discussed in the documents, creating ambiguity about whether waiver was understood.
The Court of Appeals identified several issues related to the Motion for a New Trial, including the appropriateness of jury instructions and the opportunity for BFI to present evidence. It is plausible that Spruance did not perceive any issues with the formulation of these matters, as indicated by the confidence of his legal team at that time.
Expert reports submitted by both parties highlight the complexity of the waiver issue, particularly regarding appellate review and the legal standards necessary for preserving issues on appeal. One expert believes the waiver did not occur, while the other suggests that the nuances of waiver are typically grasped only by experienced attorneys.
The Court of Appeals acknowledged that the relevant Rule does not specify the necessary grounds to avoid waiver. Due to the complexity and ambiguity surrounding waiver, and the ongoing dispute over its applicability, it cannot be concluded that the Motion for New Trial and the accompanying Memorandum should have alerted Spruance to potential issues, especially since waiver was not mentioned at that time. Spruance indicated he relied on external counsel for legal matters and had never appealed a case before, suggesting his lack of awareness regarding any brewing problems.
Conversely, Metro’s appellee brief prominently raised the issue of waiver and contended that Allied/BFI failed to preserve the issue concerning the exclusion of demolition cost testimony and did not present adequate evidence for real estate valuation. Defendants argued that a brief sent to Allied/BFI on September 23, 2011, along with billing that included 14 hours of waiver research, should have notified Allied/BFI of the waiver issue. However, when interpreting the facts in favor of Allied/BFI, it is noted that the research was conducted before Metro’s brief was filed, and the extent of time spent on waiver research is unclear. Additionally, the billing was directed to AIG, Allied/BFI’s insurer, and not directly to Allied/BFI, further complicating the argument that notice was provided.
Allied/BFI claimed they did not read Metro’s brief due to the sheer volume of documents involved in multiple cases, with Casey stating it was impractical to read everything. Both Casey and Spruance testified they rarely read filings and were unaware of the waiver issue until a meeting on March 29, 2012, when they were first informed of it and suggested pursuing legal malpractice against their attorneys. The Defendants contended that a reasonable person would have reviewed the briefs and understood the implications regarding waiver, but this claim is contested by the context of Allied/BFI’s operational management of its litigation.
Defendants, particularly the Lewis King Defendants, contend that it is illogical for Allied to assert diminished attention to the underlying litigation after a significant jury verdict in October 2011, given their prior concerns about the case's handling. The question of whether it was reasonable for specific individuals (Spruance and Casey) not to read a critical brief filed by Metro, which marked a pivotal moment, is one only a jury can resolve. A jury might conclude that the issue of waiver was not communicated to Allied/BFI until the brief's submission, and the attorney Mowles did not emphasize this potential problem, possibly trying to obscure its significance by rapidly sending related briefs. Additionally, correspondence following the brief suggested that Allied/BFI was not overly worried about its content, as Casey sought confirmation on brief reviews and argued that they would be in a better position after oral arguments.
Regarding the statute of limitations, the Lewis King and Weinberg Wheeler Defendants briefly assert that knowledge of alleged negligence should be imputed to Allied/BFI because both firms, accused of malpractice, represented the client. Under established law, clients are presumed to have knowledge of facts their attorneys learn during representation. However, the Defendants fail to cite any precedents supporting the notion that knowledge can be imputed to a client who retains two law firms, both implicated in malpractice, as this would lead to an unreasonable outcome. The imputation of knowledge from an agent to a principal is typically justified, as agents are expected to communicate relevant information to their principals, but the rationale does not hold when multiple agents may have conflicting interests regarding their client’s awareness of malpractice.
Notice is not imputed regarding the rights and liabilities between a principal and an agent, meaning an agent cannot use imputation as a defense against a principal’s claim. The Restatement (Third) of Agency supports this, as do case precedents. Attorney knowledge of wrongdoing is not automatically imputed to their law firm or to the client unless actions by a third party justify such imputation. If an agent acts against the interests of the principal, their actions cannot bind the principal. A request for summary judgment based on a statute of limitations defense will be denied.
Defendants argue that if the appellate court had found error in excluding certain testimony, it would only result in a retrial on damages, not liability. They assert that stipulated damages amount to $3,927,057, which exceeds Allied/BFI’s deductible, indicating they were not harmed by the alleged malpractice. However, the Court expresses uncertainty about the implications of a potential remand, suggesting it may not simply lead to a damages retrial since plaintiffs’ requests for a new trial encompassed broader issues affecting both liability and damages.
Moreover, stipulated damages were reached only after the trial court's pre-trial rulings and were contingent on Metro prevailing on liability. The notion of comparative fault further complicates the relevance of stipulated damages. Ultimately, Allied/BFI’s recoverable damages are limited to the $2.5 million deductible paid to settle the underlying suit and associated legal expenses, despite the defendants’ alleged negligence resulting in a substantial verdict and settlement. The collateral source rule's applicability regarding insurance policy admission is also noted.
Tennessee recognizes the collateral source rule from Restatement (Second) of Torts, which states that benefits received by an injured party from sources other than the tortfeasor do not reduce the tortfeasor's liability. Generally, evidence of such payments is inadmissible in tort actions. However, an exception exists for medical malpractice claims, where plaintiffs cannot recover medical costs covered by insurance, as outlined in Tenn. Code Ann. 29-26-119. This exception is strictly construed, reflecting that common law can only be modified by statute when explicitly stated.
Allied/BFI argues that no exceptions to the collateral source rule should apply in legal malpractice cases, but the court finds this argument irrelevant. In legal malpractice, damages must reflect the losses incurred due to the attorney’s negligence, specifically the difference between what the plaintiff received and what they would have received without the negligence. The essence of a legal malpractice claim is that the plaintiff had a valid underlying claim against a third-party tortfeasor, and the negligent attorney stands in for that tortfeasor. The aim is to restore the plaintiff to the position they would have been in had the attorney performed competently, akin to damages in breach of contract cases, where the collateral source rule does not apply.
The collateral source rule's applicability to legal malpractice claims is not well-established, particularly in Tennessee, where no relevant cases exist. A notable case from Ohio, Ohio Cent. RR. Sys. v. Mason Law Firm Co. L.P.A., involved the Ohio Central Railroad suing its lawyers for malpractice after incurring a $1.3 million liability from a lawsuit by a former employee. Ohio Central had a Lloyds of London insurance policy that included a $100,000 self-insurance retention (SIR), meaning it was responsible for the first $100,000 of any costs, including legal fees. The trial court granted summary judgment, stating that Ohio Central had not proven damages resulting from the alleged negligence since it would have incurred the SIR amount regardless of the lawyers' actions. On appeal, Ohio Central claimed that the collateral-source rule should prevent the court from considering the payments made by Lloyds. However, the Ohio Court of Appeals ruled that the rule did not apply in this case, confirming that damages paid by the insurer should not be considered when assessing the malpractice claim. It cited that a subrogee must sue in its name after covering the insured's loss, establishing that the insured can only recover the deductible amount while the insurer retains the right to pursue damages for what it paid under the insurance policy.
Parties involved in a legal malpractice case may pursue separate actions or join as coplaintiffs, but each retains a distinct interest in claiming damages incurred solely by them. In this context, the appellant is limited to recovering only the self-insured retention (SIR) amount, analogous to a deductible, because Lloyds, having covered most damages except the SIR, is contractually subrogated to the appellant's rights. This aligns with the ruling in Ward, establishing that an insured party can only recover what they directly paid in an underlying suit, not the total settlement amount. The collateral source rule does not apply in legal malpractice cases, as confirmed by various precedents, indicating that any damages for which the insured was not liable—such as a judgment or settlement in an unrelated lawsuit—are not recoverable. The cited cases illustrate that while some jurisdictions have addressed the application of the collateral source rule differently, the prevailing view in this context restricts recovery to amounts personally incurred by the insured, maintaining consistency with the principles established in Ohio Central and other referenced case law.
The excerpt outlines the elements necessary to establish a prima facie legal malpractice claim, requiring that a plaintiff demonstrate: (1) the attorney owed a duty, (2) the attorney breached that duty, (3) the plaintiff suffered damages, (4) the breach caused the damages in fact, and (5) the negligence was the proximate cause of the damages. Expert testimony is generally required to prove negligence and proximate cause unless the malpractice is within common knowledge. Only cases of "clear and palpable negligence" can be assessed without expert input. In Tennessee, there exists a single statewide standard of care for attorneys, meaning that experts must be familiar with this standard when testifying.
The Levine Orr Defendants seek partial summary judgment related to allegations of malpractice, asserting they are entitled to judgmental immunity for their decisions regarding expert witness usage, trial continuance requests, and jury instruction objections. Judgmental immunity protects attorneys from liability for mistakes made in the honest exercise of professional judgment, as established by the Sixth Circuit. This immunity, however, is not absolute; attorneys must still exercise reasonable skill and care in their professional actions.
The Levine Orr Defendants' request for partial judgment relies solely on an expert report from William Walton, Esq., asserting that their actions adhered to the standard of care. In contrast, Allied/BFI's expert, Smith, argues that Levine Orr failed to exercise reasonable care across three matters. The presence of conflicting expert opinions indicates that summary judgment is inappropriate, as it is the role of the trier of fact to evaluate such testimony rather than the reviewing court.
The Weinberg Wheeler and Lewis King Defendants contend that excluding expert Held from their new trial memorandum was a tactical choice and argue that Plaintiffs cannot show injury from this exclusion. However, evidence suggests that the preparation for the motion and memorandum lacked diligence and was hastily executed, undermining claims of a thoughtful decision-making process. Notably, significant work began only two weeks before the deadline, with reliance on a junior associate and late-stage reviews. Additionally, an email from Sullivan indicates prior consideration of the Held issue, contradicting the assertion that it was deemed unworthy for inclusion. Expert opinions from both Lewis King and Allied/BFI support the claim that Weinberg Wheeler breached the standard of care concerning the new trial motion, further complicating their defense. Metro's motion to exclude Held was based on his lack of a real estate appraiser's license as mandated by statute.
It is unlawful to solicit or prepare real estate appraisals in Tennessee without a valid appraiser's license or certificate, per Tenn.Code Ann. 62-39-103(a). Judge Binkley granted Metro’s Motion in Limine to exclude Mr. Held from testifying, determining that his testimony on the value of Thermal constituted an appraisal opinion, which he was unqualified to provide. Additionally, Held was barred from discussing future plans for Thermal and its obsolescence due to irrelevance and potential prejudicial impact under Tenn. R. Evid. 403. The Weinberg Wheeler Defendants contended that Judge Binkley did not exclude Held based on a lack of licensure, as the statute was not explicitly mentioned in the Order. However, the court emphasized that its orders should not be interpreted in isolation from the context of the proceedings. During the hearing, Judge Binkley expressed concern about Held's qualifications in light of the licensing statute, affirming that expert opinions on real property valuation require compliance with both the specific statutory and general evidentiary requirements. It was concluded that the trial court erred in allowing Mr. Harris to provide an expert opinion on property value since he was not a licensed real estate broker at the time of his testimony, reinforcing that Judge Binkley’s decision was based on the statute.
Judge Binkley misinterpreted the statute, as supported by the Tennessee Court of Appeals' decision in City of Pulaski v. Morris, which clarified that Tenn.Code Ann. 62-39-103(a) pertains to individuals preparing appraisals, not just those offering opinions on property value. The ruling emphasized that while licensed appraisers may testify on value, they are not the sole experts permitted. The Weinberg Wheeler Defendants argue that regardless of any exclusion of Held by the Court of Appeals, it would not constitute reversible error, as Held disqualified himself from providing a before-and-after valuation by admitting he was unqualified to do so. They assert that Allied/BFI cannot demonstrate that the Court of Appeals would have granted a new trial based on Held’s issue or prove causation.
In a legal malpractice claim, a plaintiff must show that they would have prevailed in the underlying lawsuit but for the attorney’s negligence, effectively creating a 'trial within a trial.' This requires proving the attorney's conduct fell below the standard of care and that a meritorious claim was lost due to the attorney's negligence. If the case was appealed, the plaintiff must also demonstrate a likelihood of success on appeal and a potential recovery upon retrial. Courts apply an objective standard to evaluate whether the former client would have succeeded in the underlying suit, assessing what a reasonable judge or jury would have decided absent the attorney's negligence. The focus is on the expected outcome rather than the actual judge's decision, emphasizing what the outcome should have been in a case within a case analysis.
An objective standard governs the outcome of a trial-within-a-trial in legal malpractice cases, focusing on what a reasonable judge or jury would have decided absent the attorney's negligence, rather than what a specific judge or jury actually decided. The court rejects the Weinberg Wheeler Defendants' assertion that the appeals court would have found no abuse of discretion, explaining that such abuse occurs when a court fails to adhere to applicable legal standards or properly consider relevant factors. Judge Binkley’s misapplication of the statute significantly undermined Allied/BFI’s damages case, particularly due to the exclusion of expert testimony, which likely would lead a reasonable appeals court to find an abuse of discretion. The court disagrees with the claim that the appellate court would uphold the exclusion of the expert testimony, instead suggesting that the case would be remanded for proper consideration of the expert’s qualifications and potential impact on the original case. The jury in the malpractice suit must determine whether the excluded evidence would have influenced the outcome of the underlying litigation.
Additionally, the Levine Orr Defendants seek summary judgment on claims of breach of contract and breach of fiduciary duty. The plaintiffs do not contest the breach of contract claim, leaving the breach of fiduciary duty claim as the sole issue, which remains unaddressed by Tennessee courts in the context of legal malpractice.
Parties in the case reference out-of-state legal precedents to support their arguments regarding the dismissal of duplicative claims. The Levine Orr Defendants assert that courts can dismiss claims if they arise from the same facts and result in the same injury. They cite Barrow v. Blouin, which supports the dismissal of duplicative claims, specifically noting that a breach of fiduciary duty claim is duplicative of a legal malpractice claim when both are based on the same operative facts. Similar conclusions are drawn from Pippen v. Pedersen and Houpt, and McKenzie v. Berggren, where claims for breach of contract were deemed duplicative of malpractice claims. The court emphasizes that a failure to represent constitutes malpractice, leading to the dismissal of a breach of contract claim.
The Levine Orr Defendants differentiate between legal malpractice and breach of fiduciary duty, arguing that the latter pertains to an attorney's obligations of loyalty and confidentiality. Plaintiffs claim two points that support their breach of fiduciary duty allegation: the failure to provide a client file in a timely manner and not keeping the plaintiffs informed about significant litigation decisions. The court concurs that these claims are distinct from legal malpractice claims, referencing Trousdale v. Henry, which supports the idea that breach of fiduciary duty claims can exist independently from legal malpractice claims. The court concludes that an attorney has a professional responsibility, including a duty of loyalty, which necessitates honoring a client's wishes in critical litigation choices.
In Halstead v. Murray, the court emphasized that clients must be adequately informed by their attorneys, failing which clients may pursue legal action for breach of fiduciary duty. The court determined that factual disputes prevent summary judgment on the plaintiffs’ claim regarding breach of fiduciary duty. The defendants highlighted that they returned extensive documentation to the plaintiffs following email communications, but this transfer occurred after the filing of the Amended Complaint, despite a previous request for client files.
Regarding trial counsel selection, an email exchange indicated that Casey reluctantly agreed to let Orr try the case due to Geracioti's lack of involvement, with trial imminent. The plaintiffs sought partial summary judgment against the defendants' affirmative defenses of assumption of risk and comparative fault, arguing that these defenses arose from their refusal to settle the underlying lawsuit. The defendants countered that the plaintiffs' decision to not settle constituted an assumption of risk and contributed to their damages.
Allied, prior to trial, recognized a potential malpractice claim against Levine Orr, opting to prepare for appeal rather than settle, a strategy that ultimately proved costly. Allied was concerned that settling would jeopardize their malpractice claim against Levine Orr. The court noted that over a year before trial, Orr had assessed potential damages and communicated a settlement demand from Metro shortly before trial, highlighting significant risks and deficiencies in Allied's case.
Ms. Casey was aware of a fire hazard but failed to take appropriate action. She was also facing unspecified sanctions for discovery violations. On September 9, 2010, she communicated to Mr. Orr that her settlement offer was zero and indicated plans to proceed to trial. The following day, Orr informed her about a motion in limine hearing, where the judge ruled to exclude testimony from Held and Gershman, allowed Metro's cost of repair estimate, prohibited mentioning Nashville Thermal's planned shutdown, and decided on giving an adverse inference instruction. Orr indicated that Metro was open to settlement discussions, placing the responsibility on Allied/BFI.
On September 15, 2010, Piecirillo advised Casey to consider a settlement offer above $250,000, suggesting a strong chance of prevailing and estimating a settlement range of $1.5 to $2.8 million. However, Casey only had authority for an offer below $100,000. By September 24, 2010, Piecirillo informed Casey that Metro would not settle for less than $500,000, and at trial, Metro suggested a settlement around that amount. After a motion for a new trial was denied, Allied/BFI refused to settle for more than $999,000 and rejected an insurance adjuster's recommendation of $2.5 million, citing potential malpractice claims and poor claims administration risks.
The plaintiffs acknowledged these communications but argued they were assured of winning the case. They contended that the possibility of settlement was irrelevant, asserting they had no duty to settle and therefore did not assume risk, were not comparatively at fault, and had no obligation to mitigate damages by settling. The court concurred, noting that while comparative fault applies to legal malpractice claims, there is a dispute about whether a client can be at fault for refusing to settle. The plaintiffs referenced the case of Am. Int’l Adj. Co. v. Galvin, where the court did not permit the attorney to use defenses of incurred risk and contributory negligence based on the insurer's refusal to settle, reinforcing their position.
Contributory negligence can be used as a defense in legal malpractice cases in Indiana; however, the attorney's defense is legally insufficient. The attorney claims that the insurer's negligence in failing to settle the underlying case caused the malpractice, but there is no legal obligation to settle a case. Even if the insurer's failure to settle was unwise, it did not cause the alleged injury from the attorney's mishandling of the trial. Judge Posner's dissent agrees that a new trial is unnecessary but supports the majority’s decision to exclude the defense of contributory negligence. He argues that the insurer’s negligence in not settling does not increase the likelihood of the attorney’s failure at trial. The dissent emphasizes that had the insurer provided poor guidance, it could have contributed to the mishandling, but simply failing to settle does not have that effect. The attorney’s rationale for contributory negligence contradicts established legal principles and nearly suggests that rejecting a settlement absolves a lawyer from malpractice claims, which is incorrect. Individuals with strong cases should have the right to pursue trial victories, and if their attorney is incompetent, they retain the right to sue for malpractice. The excerpt also references the case Mercer v. Vanderbilt University, where it was determined that a patient’s prior negligence does not diminish their right to non-negligent medical treatment and full recovery if such treatment is not provided. The court found it illogical to allow a breach of duty by a healthcare provider to go unpunished simply because the patient may have contributed to their condition.
Clients are entitled to non-negligent representation and full recovery if such representation is lacking. The Defendants argue that the case differs from Galvin, asserting that Allied/BFI intentionally chose not to settle in favor of pursuing a legal malpractice claim, despite knowledge of the alleged malpractice. However, this view overlooks that the negligence was continuous and included Levine Orr’s pre-verdict actions as well as all Defendants’ failure to adequately preserve appeal issues. The core of Allied/BFI's injury stems from the alleged malpractice, not the refusal to settle. While Defendants point to Allied/BFI’s failure to mitigate damages as an “elephant in the room,” Tennessee law treats this as an affirmative defense, which Defendants did not plead. Consequently, litigants have no obligation to settle cases that may lead to subsequent legal malpractice claims. The Court emphasizes that Defendants cannot shift blame onto a client for their own negligence. The Court has addressed all issues in the pending motions and will issue an Order confirming its conclusions, as well as schedule a final pretrial conference and trial. The pending Motion labeled Docket No. 83 will be terminated as it is a Memorandum, not a motion. Spruance, a law school graduate with limited legal experience, testified regarding his understanding of waiver, raising questions about his reading habits of legal filings. Allied/BFI paid $2.5 million in self-insured retention and approximately $3.6 million in litigation costs. Under Tennessee law, once an insurer pays a loss, it becomes the real party in interest regarding subrogation claims and may intervene in actions brought by the insured against a wrongdoer. The Lewis King Defendants reference the Weinberg Wheeler Defendants' legal malpractice arguments, particularly concerning the failure to identify City of Pulaski, an unpublished case. The Court notes that whether this issue is significant or a distraction is irrelevant for the current purposes, as both City of Pulaski and Wheeler were non-binding cases.
