Bailey v. Martz, 4-485A116
| Decision Date | 10 February 1986 |
| Docket Number | No. 4-485A116,4-485A116 |
| Citation | 488 N.E.2d 716 |
| Parties | Paul A. BAILEY, individually and as administrator of the Estate of Mark Todd Bailey, deceased, Appellant-Plaintiff, v. Hugo E. MARTZ and David Chidester, Appellees-Defendants. |
| Court | Indiana Appellate Court |
Jay T. Seeger, Gambs, Mucker, Bauman & Seeger, Lafayette, for appellant-plaintiff.
Edward N. Kalamaros, Thomas Cohen, Edward N. Kalamaros & Associates, South Bend, for appellees-defendants.
Plaintiff-Appellant Paul A. Bailey (Bailey), appeals the entry of summary judgment We affirm.
against him in an attorney malpractice action.
This appeal presents the following issues:
1. whether Bailey's decedent was guilty of contributory negligence as a matter of law,
2. whether the applicable statutes of limitation ran while defendants-appellees Hugo E. Martz (Martz) and David Chidester (Chidester) represented Bailey as his attorneys-at-law, and
3. whether the four months remaining to Bailey to obtain other counsel after Martz and Chidester withdrew gave Bailey sufficient time to employ other counsel.
The facts and inferences before the trial court which most favor Bailey are as follows: On September 16, 1978, Bailey's thirteen-year-old son, Mark Todd Bailey (Mark), stopped the Honda 125 cc dirt bike he was riding at the stop sign on the corner of Washington and Cross Streets in Wanatah, Indiana. This intersection is 419 feet north of the Conrail Railroad crossing on Washington.
After the stop, Mark accelerated his motorbike south on Washington toward the railroad crossing, marked only with a rusty and illegible railway crossing sign. At the same time, a Conrail train was approaching it at a speed of 40 miles per hour. The train did not blow its whistle prior to entering the crossing. At that time, a southbound motorist's view of the Conrail tracks in the direction from which the train was approaching was obstructed until the motorist reached a point 75 to 100 feet North of the crossing. From that point on, the view was unobstructed.
As Mark approached the crossing, he applied the motorbike's brakes and skidded 78 feet to the crossing. He collided with the rear of the train's first engine, already in the crossing.
The Washington Street speed limit north of the crossing was not more than 30 miles per hour. Prior to the day of the accident, Mark had driven over the crossing numerous times and was familiar with it. An expert motorcycle mechanic's affidavit stated in his opinion the motorbike Mark was riding at the time could only attain a maximum speed of 40 miles per hour from a standing stop in 419 feet.
Mark suffered severe injuries. Because of this collision, he was rendered a quadriplegic.
In June, 1979, Bailey retained attorney L. Michael Yoder to represent him and his son's interests, but Yoder filed no claim against Conrail while representing them. Later, on July 11, 1979, a heart monitor Mark was wearing malfunctioned, burning him seriously. Bailey then asked Yoder to take action regarding this incident, but again Yoder did nothing.
Later, on May 28, 1980, Mark had breathing problems, was hospitalized, examined, and released. Two days after his release, Mark stopped breathing. An ambulance which had been called to the scene arrived 20 minutes after the call had been placed. During that time Mark lapsed into a coma then died June 14, 1980. Bailey again instructed Yoder to pursue this and all other claims, but again Yoder did nothing.
Bailey finally discharged Yoder and consulted Martz and Chidester on November 11, 1981. Immediately following this consultation, Martz contacted Yoder, advising him he had been consulted by Bailey. He then asked Yoder to send him Bailey's file. A portion thereof was delivered to Martz and Chidester on November 17, 1981.
These papers revealed, contrary to what Bailey had told them, Yoder had not filed suit against Conrail. Martz and Chidester then agreed to represent Bailey. They executed a written agreement with Bailey on December 30, 1981. It provided Martz and Chidester would pursue all claims arising out of Mark's injury and death, including a possible malpractice action against Yoder.
After investigating Bailey's various claims, Martz and Chidester told Yoder they believed he was guilty of malpractice.
By letter dated January 26, 1982, attorney Calvin K. Hubbell contacted Martz and Chidester. He advised them he represented Yoder and believed they were also guilty of malpractice because Bailey's case was in their hands when the applicable survival of claims statute had run. Analyzing this situation in light of attorney Hubbell's remarks, Martz and Chidester determined a possible conflict of interest between themselves and Bailey existed, that is, Bailey had a possible claim against them for malpractice. So believing, they advised Bailey thereof on February 13, 1982, and refused to represent him and his son's estate further. They confirmed their withdrawal of representation by letter to Bailey dated February 15, 1982. At the time they withdrew, Martz and Chidester also had filed no lawsuits against anyone. However, Bailey did not retain other counsel until four months later on June 14, 1982, two years to the day from the date of Mark's death.
His estate was opened in Porter Circuit Court on December 6, 1982. This cause, filed in Porter Circuit Court on February 8, 1983, was subsequently transferred to Pulaski Circuit Court, the trial court from which this appeal is taken.
Additional facts as necessary to our decision are stated below.
Summary judgment is appropriate only if there are no issues of material fact and the moving party is entitled to judgment as a matter of law. Bernhardt v. State (1985), Ind.App., 479 N.E.2d 1367, 1368; Taylor-Chalmers, Inc. v. Board of Commissioners of LaPorte County (1985), Ind.App., 474 N.E.2d 531, 532; Penwell v. Western and Southern Life Ins. Co. (1985), Ind.App., 474 N.E.2d 1042, 1044; Ind. Rules of Procedure, Trial Rule 56(C). As this court states with drum-beat regularity
When reviewing the grant of a motion for summary judgment we stand in the shoes of the trial court. We must determine whether any genuine issue of material fact exists and whether the law was correctly applied. ... We must liberally construe all evidence in favor of the non-movant and resolve any doubt as to the existence of a genuine issue against the proponent of the motion.... A fact is material if it facilitates resolution of any of the issues involved.... On appellate review the trial court's judgment will be affirmed on any theory or basis found in the record which supports the trial court's judgment.... A fact is "material" for summary judgment purposes, if its resolution is decisive of the action or of a relevant secondary issue.... (Citations omitted).
The essential elements of a cause of action for attorney negligence are:
1. employment of the attorney (the duty);
2. failure of the attorney to exercise ordinary skill and knowledge (the breach) which
3. proximately causes
4. loss to the plaintiff (damages).
See, Fiddler v. Hobbs (1985), Ind.App., 475 N.E.2d 1172, 1173; and cf. Anderson v. Anderson (1979), Ind.App., 399 N.E.2d 391, 401.
(c) Attorney Yoder (prior attorney malpractice) (d) Porter Memorial Hospital (lung stimulator malfunction), and
(e) LaPorte County Emergency Medical Services (late ambulance response), and
(2) they wrongfully withdrew from representation
(a) without good cause, and
(b) without having taken any action to preserve Bailey's claims mentioned above.
(2) alleged possible causes of action were "baned" [sic] by applicable statutes of limitations at the time this case was filed, and
(3) alleged Mark's contributory negligence was the proximate cause of his own injuries and damages.
(3) as to the other claims, no recovery was possible since Mark's estate was not opened within one year from the date of his death, required by the Probate Code as a condition precedent to recovery.
(b) the statute of limitations on the Conrail claim ran while Martz and Chidester represented him and his son's estate, and
(c) they wrongfully withdrew without leaving him sufficient time to employ new counsel.
Summary Judgment
warranted the trial court's...
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