Paterek v. Petersen & Ibold

• Decision Date: 18 June 2008
• Docket Number: No. 2006-1811.,2006-1811.
• Citation: 2008 Ohio 2790,118 Ohio St.3d 503,890 N.E.2d 316
• Parties: PATEREK, Exr., Appellee, v. PETERSEN & IBOLD et al., Appellants.
• Court: Ohio Supreme Court

890 N.E.2d 316

118 Ohio St.3d 503

2008-Ohio-2790

PATEREK, Exr., Appellee, v. PETERSEN & IBOLD et al., Appellants.

No. 2006-1811.

Supreme Court of Ohio.

Submitted September 19, 2007.

Decided June 18, 2008.

Plevin & Gallucci, Edward Fitzgerald, and Leon M. Plevin; and Paul W. Flowers Co., L.P.A., and Paul W. Flowers, Cleveland, for appellee.

Weston Hurd, L.L.P., Timothy D. Johnson, and Gregory E. O'Brien, Cleveland, for appellants.

Zavarello & Davis Co., L.P.A., and Rhonda Gail Davis, urging affirmance for amicus curiae Ohio Academy of Trial Lawyers.

Reminger & Reminger Co., L.P.A., Nicholas D. Sattullo, and Joseph W. Borchelt, Cincinnati, urging reversal for amicus curiae Ohio Association of Civil Trial Attorneys.

Gallagher Sharp, Alan M. Petrov, Timothy J. Fitzgerald, and Monica A. Sansalone, Cleveland, urging reversal for amicus curiae Minnesota Lawyers Mutual Insurance Company.

Janik, Dorman & Winter, L.L.P., Steven G. Janik, Jason Winter, and Daniel A. Scharf, Cleveland, urging reversal for amicus curiae American Guarantee and Liability Insurance Company.

PFEIFER, J.

{¶ 1} We hold today that in an attorney-malpractice case, proof of the collectibility of the judgment lost due to the malpractice is an element of the plaintiff's claim against the negligent attorney.

Factual and Procedural Background

{¶ 2} This is an attorney-malpractice case involving the mishandling of a personal-injury claim. On May 28, 1997, Kristopher Richardson negligently injured Edward Paterek in an automobile accident. Richardson had no personal assets or earning capacity with which to compensate Paterek for his injuries, but did carry $100,000 of auto liability coverage.

{¶ 3} After the accident, Paterek and his wife, appellee Irene Paterek, retained an attorney, Jonathon Evans, of the law firm of Peterson & Ibold, appellants, to represent them in a personal-injury action against Richardson. On May 11, 1998, Evans filed a lawsuit against Richardson, but subsequently dismissed it on October 6, 2000, without prejudice. He then failed to refile the claim within one year of the dismissal, and the suit was dismissed for want of prosecution. Both Evans and Peterson & Ibold admitted liability for the damages proximately caused by Evans's breach of the standard of care.

{¶ 4} On October 2, 2002, the Patereks filed this legal-malpractice suit. Edward Paterek died on February 2, 2003, and Irene was named executor of his estate on March 18, 2003; Irene also maintained a claim in her own right.

{¶ 5} On September 17, 2003, appellants filed a motion for partial summary judgment. They argued that since the maximum recovery available to Irene from the tortfeasor was $100,000, the court should cap any damages against the appellants at that amount.

{¶ 6} The trial court overruled appellants' motion on October 21, 2003, holding that the collectibility of a judgment against the underlying tortfeasor was not an element Irene would have to prove at trial:

{¶ 7} "Although Plaintiffs will have to prove the `case within the case', such proof does not have to go so far as to demonstrate that the tortfeasor in the underlying case was not judgment proof or, conversely stated, that the tortfeasor had assets from which a judgment could be collected."

{¶ 8} On May 5, 2004, Irene filed a second amended complaint, raising a claim for underinsured-motorist ("UIM") coverage against One Beacon Insurance ("One Beacon"). The Patereks owned a One Beacon policy with UIM coverage with limits of $250,000.

{¶ 9} On November 22, 2004, Irene voluntarily dismissed One Beacon from the proceedings, without prejudice. The legal-malpractice claim against the firm and Evans proceeded to trial on December 13, 2004. The parties jointly submitted stipulations to the court. The appellants stipulated that Richardson was at fault in the underlying accident and that Edward Paterek was not comparatively negligent. The appellants also admitted that Evans missed a filing deadline, causing the Patereks to lose their cause of action. The parties stipulated that Richardson carried a $100,000 automobile liability insurance policy that would have been available to satisfy a judgment against him. The parties further stipulated that Richardson had no other assets:

{¶ 10} "Kristopher Richardson did not at the time of the accident, nor does he presently, have any personal assets or earning capacity sufficient to satisfy any judgment against him in excess of the $100,000 automobile liability coverage."

{¶ 11} The parties also stipulated that the Patereks held a valid UIM policy:

{¶ 12} "[T]he Plaintiffs had underinsured motorist coverage with Beacon One [sic] in the amount of $250,000 at the time of the accident in question ($150,000 of which may be available to the plaintiffs to cover damages, if necessary, after set-off of the $100,000 available from the tortfeasor's policy)."

{¶ 13} Finally, the parties stipulated that "these stipulations will be entered into the record by the Court but the jury will only be told that a filing deadline was missed by Mr. Evans (and the firm) and that there is no issue of liability regarding the underlying accident. The jury will be asked to just return a verdict regarding the value of the Plaintiff's damages."

{¶ 14} The court thus advised the jury at the outset of the proceedings that they needed to consider only the amount of damages suffered by the Patereks.

{¶ 15} At the close of the plaintiff's case, the defense moved the court to limit the damages in the case to the amount of Richardson's insurance policy. Consistently with its summary-judgment ruling, the trial court again rejected the argument that damages should be capped at $100,000.

{¶ 16} On December 15, 2004, the jury returned a verdict of $382,000 for Irene Paterek. In response to interrogatories, the jury stated that it had awarded the decedent's estate $282,000 for his medical bills, pain and suffering, and inability to perform usual activities, and $100,000 for loss of consortium to Irene.

{¶ 17} On December 30, 2004, appellants filed a motion for judgment notwithstanding the verdict pursuant to Civ.R. 50(B). In its February 16, 2005 decision, the trial court granted that motion, holding that the Patereks' recovery was restricted to the $100,000 liability policy limits maintained by the original tortfeasor, Richardson.

{¶ 18} The court based its decision on two factors. First, the court found that the jury's award was based only upon the injuries suffered by the Patereks in the automobile accident; the jury did not find any separate injuries related to the firm's breach: "Although the instructions given to the jury permitted them to consider awarding damages beyond the amounts of Plaintiff's underlying personal injury and loss of consortium claims, the interrogatories establish that the jury chose not to do so. The jury limited its award to those sums it determined arose from Mr. Paterek's personal injury and Mrs. Paterek's loss of consortium." (Footnote omitted.)

{¶ 19} Second, the court found that the Patereks had failed to submit any proof that Richardson would have been able to pay anything beyond the amount of his insurance: "It can be argued that the value of the opportunity to collect in this case was limited to the policy limits of $100,000. It is also conceivable that an expert witness could be found who would opine that statistically the value of a $382,000 judgment against a person of Mr. Richardson's age and financial status is of a particular worth. If that is so, no such expert testified in this trial."

{¶ 20} The court concluded:

{¶ 21} "The determination that Plaintiff suffered damages in the amount of $382,000 as a result of Kristopher Richardson's negligence does not mean that Plaintiff suffered damages in that same amount as a result of the negligence of Jonathon Evans and Petersen & Ibold. It is possible that Plaintiff could be entitled to damages from Defendants in addition to those resulting from the injuries caused by Mr. Richardson upon proper proof that additional damages existed. In the same vein, although Mr. Richardson caused injuries that were assigned a monetary value of $382,000, the damages actually caused by the negligence of these Defendants must be limited to the amount that Plaintiff could be reasonably certain of receiving had Defendant not been negligent."

{¶ 22} The trial court did not address the issue of the Patereks' UIM policy.

{¶ 23} Irene appealed the trial court's decision, and on August 14, 2006, the Eleventh District Court of Appeals reversed the lower court's judgment and remanded for an order reinstating the jury verdict. Paterek v. Petersen & Ibold, Geauga App. No. 2005-G-2624, 2006-Ohio-4179, 2006 WL 2337483. The appellate court held that the trial court had erred in making collectibility from Richardson an element of Irene's case:

{¶ 24} "Under Civ.R. 50(B) the trial court had no duty to examine the collectability of Richardson. * * * We accept that the jury limited its verdict of $382,000 to the personal injuries suffered by the Patereks, and did not enhance the award with any other damages that may have related to the malpractice committed by Evans and Petersen & Ibold, but this fact by itself did not enable the trial court to step in and reduce the jury verdict due to considerations of collectability of the verdict. Its duty was to examine whether the verdict was supported by `substantial evidence,' not whether the verdict was collectible." Id. at ¶ 45.

{¶ 25} The cause is before this court upon the acceptance of a discretionary appeal.

Law and Analysis

{¶ 26} In Vahila v. Hall (1997), 77 Ohio St.3d 421, 674 N.E.2d 1164, this court set forth the elements of a claim for legal malpractice:

{¶ 27} "To establish a cause of action for legal malpractice based on negligent representation, a plaintiff must show (1) that the attorney owed a duty or obligation to the plaintiff, (2) that there was a breach of that...