St. Paul Fire & Marine Ins. Co. v. Chong, Civ. A. No. 91-2141-0.
| Citation | 787 F. Supp. 183 |
| Decision Date | 02 March 1992 |
| Docket Number | Civ. A. No. 91-2141-0. |
| Court | U.S. District Court — District of Kansas |
| Parties | ST. PAUL FIRE & MARINE INSURANCE COMPANY, Plaintiff, v. Hong Hun CHONG, Sun Ho Chang, and Sang Yong Kim, Defendants. |
Michael P. Oliver, Wallace, Saunders, Austin, et al, Overland Park, Kan., for plaintiff.
Gregory M. Dennis, Perry & Hamill, Overland Park, Kan., Veronica Jongenelen, Benson & McKay, Kansas City, Mo., Rayborn C. Johnson, Jr., Bartley & Johnson, Houston, Tex., for defendants.
This matter is before the court on plaintiff St. Paul Fire & Marine Insurance Company, Inc.'s ("St. Paul's") motion for discharge and enjoinment (Doc. $ 21). St. Paul filed this action for declaratory relief to determine the policy limits of a professional liability insurance policy. Having reviewed St. Paul's motion, the court is now prepared to rule.
The relevant facts are undisputed:1
1. Defendants Hong Hun Chong ("Chong"), Sun Ho Chang ("Chang"), and Sang Yong Kim ("Kim") are citizens of the Republic of Korea and are lawful resident aliens.
2. Kent Owen Docking ("Docking") is a Kansas attorney licensed to practice before the Supreme Court of the State of Kansas and the United States District Court for the District of Kansas. Docking was admitted to practice on September 20, 1985.
3. On May 24, 1986, Chong, Chang, and Kim were arrested. Each was subsequently charged in the District Court of Leavenworth County, Kansas, with two counts of aggravated kidnapping.
4. At the time of their respective arrests, the three defendants understood little, if any, English.
5. The factual allegations supporting the criminal charges all occurred at or about the same time. Further, the complaining witnesses were the same against all three defendants.
6. Shortly after the arrests, Docking agreed to provide legal representation to each of the three defendants.2 In turn, each of the defendants paid Docking a retainer of $5,000. Docking assumed legal representation of the three defendants in spite of his lack of felony jury trial experience, lack of experience in representing non-English speaking persons, lack of experience on immigration law consequences that might arise from criminal proceedings, and with knowledge that Chong had given a written statement to law enforcement officers possibly implicating Kim and Chang.
7. Proceedings before the District Court of Leavenworth County, Kansas, were not simultaneously, properly, and/or adequately translated for the three defendants from English into Korean because Docking only secured one interpreter to be shared by the three defendants, and this retained interpreter did not simultaneously and/or properly during court proceedings translate from English into Korean and vice versa. Further, Docking failed to inquire into and establish the qualifications of the retained interpreter on the court record as required by Kansas law.
8. After little, if any, investigation or research, Docking recommended to each defendant, without adequate and complete explanation, that each should plead guilty to the counts charged. In so doing, Docking informed each defendant that each would receive probation, rather than a prison sentence, if the court-ordered presentence investigations were favorable. If such investigations were not favorable, Docking advised, the trial judge would then allow each defendant to withdraw his "guilty" plea and to proceed to trial. In advising the three defendants in this manner, Docking failed to explain to them the consequences of pleading guilty. Further, Docking failed to understand that the word "plea," as commonly used in the legal system, did not have the same meaning as that word is usually and commonly understood in the Korean language and as was understood by each of the three defendants.
9. On September 5, 1986, in reliance on Docking's recommendations, each of the three defendants plead guilty to the charges against them.
10. On October 6, 1986, four days before the scheduled sentencing hearings, Docking filed with the District Court of Leavenworth County separate motions on behalf of each defendant requesting that each be allowed to withdraw the guilty pleas previously entered. The basis for each motion was that there had been mistakes in translations by both the court's interpreter and the interpreter retained by Docking and that each of the defendants had accordingly failed to understand the terms and conditions of their guilty pleas.
11. On October 10, 1986, the trial judge heard the motions to withdraw guilty pleas. Docking called no witnesses in support of the motions. The trial judge denied each of the motions and sentenced each defendant to the custody of the Secretary of Corrections of the State of Kansas.
12. Subsequent to the sentencings, Docking erroneously informed each of the defendants that they could not appeal the trial judge's rulings on the motions to withdraw guilty pleas.
13. Subsequently, the Attorney General of the United States, through the Immigration and Naturalization Service, issued separate orders to each of the defendants to show cause why, because of their criminal convictions, they should not be deported from the United States pursuant to 8 U.S.C. § 1251. At no time during Docking's representation of the three defendants had he advised any of them that they could be deported from the United States upon being convicted of the charges against them. Further, Docking failed to advise each of the defendants that they had a right to request from the District Court of Leavenworth County a recommendation against deportation pursuant to 8 U.S.C. § 1251(b)(2). Finally, although each of the defendants had informed Docking that they wanted to become American citizens, Docking failed to inform them that criminal convictions might make each of them ineligible for such citizenship pursuant to 8 U.S.C. § 1427.
14. Following the convictions, Docking informed each of the defendants of their right to file habeas corpus petitions. However, Docking erroneously informed each defendant that, because of their confinement, they would have to file pro se petitions. Further, Docking erroneously advised each defendant that such petitions could only be filed in federal court.
15. On December 23, 1987, Chong, with assistance from a so-called "jail-house lawyer" at the Kansas State Penitentiary and without any assistance from Docking, filed a pro se habeas corpus application pursuant to K.S.A. 60-1507 with the District Court of Leavenworth County, seeking release on the grounds of ineffective assistance of counsel.
16. On November 18, 1988, Chang and Kim each filed similar pro se habeas corpus petitions with the District Court of Leavenworth County alleging ineffective assistance of counsel.
17. On December 6, 1988, the District Court of Leavenworth County held a hearing on the habeas corpus petitions. After hearing testimony and receiving a variety of exhibits, the court found that each of the defendants' federal and state constitutional rights to effective assistance of counsel had been denied. Accordingly, the court sustained each of the petitions and declared each of the convictions to be void.
18. The parties have stipulated to the negligent acts and omissions of Docking. With respect to Docking's representation of Chong, the parties have listed 25 separate negligent acts and omissions on the part of Docking. With respect to Docking's representation of Change, the parties have also listed 25 separate negligent acts and omissions on the part of Docking. Finally, with respect to Docking's representation of Kim, the parties have listed 26 separate negligent acts and omissions on the part of Docking. Although Docking's actions and omissions are similar with respect to each defendant, they are not identical.
19. As a direct and proximate result of Docking's negligence, each of the defendants was incarcerated.
20. As a direct and proximate result of Docking's negligence, each of the defendants was unable to work for approximately 30 months and suffered resulting losses of wages, benefits, and social security contributions.
21. As a direct and proximate result of Docking's negligence, each of the defendants has suffered severe mental anguish, humiliation, pain and suffering, loss of freedom, and emotional distress. Further, each defendant has incurred legal and translation expenses in successfully prosecuting their habeas corpus petitions and in seeking dismissal of their deportation proceedings.
22. At all material times, Docking was an insured of St. Paul under a professional liability insurance policy. The policy provides coverage limits of $100,000 for "each wrongful act." Further, the policy provides, in pertinent part, as follows:
The policy provides that the term "wrongful acts" shall include "errors, omissions or negligent acts committed in the performance of legal or notary services." However, the policy does not define the phrase "series of related wrongful acts."
23. Subsequent to their release from confinement, each of the defendants filed separate legal malpractice actions against Docking. Docking, St. Paul, and the defendants each reached separate agreements allowing each of the defendants to "secure a judgement against Docking for $100,000.00 in return for a Covenant Not To Execute against any assets other than those provided Docking under the terms of his liability policy."
St. Paul argues that the amount of coverage provided under the...
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