Cook v. Continental Cas. Co., 92-1130

• Decision Date: 16 November 1993
• Docket Number: No. 92-1130,92-1130
• Parties: Osie COOK, Jr., and Lisa A. Cook, Plaintiffs-Appellants-Cross Respondents, d v. CONTINENTAL CASUALTY COMPANY, Michael F. Hupy, National Union Fire Insurance Company of Pittsburgh and Hausmann-McNally, S.C., Defendants-Respondents-Cross Appellants. dd
• Court: Wisconsin Court of Appeals

Page 100

509 N.W.2d 100

180 Wis.2d 237

Osie COOK, Jr., and Lisa A. Cook Plaintiffs-Appellants-Cross Respondents,^d v. CONTINENTAL CASUALTY COMPANY, Michael F. Hupy, National Union Fire Insurance Company of Pittsburgh and Hausmann-McNally, S.C. Defendants-Respondents-Cross Appellants.^dd

No. 92-1130.

Court of Appeals of Wisconsin.

Submitted on Briefs April 13, 1993.

Opinion Released Nov. 16, 1993.

Opinion Filed Nov. 16, 1993.

For defendants-respondents-cross appellants Michael F. Hupy and Continental Casualty Company, the cause was submitted on the briefs of Edward A. Hannan and Michael Aldana of Godfrey, Braun & Hayes, Milwaukee.

For defendants-respondents-cross appellants National Union Fire Insurance Company of Pittsburgh and Hausmann-McNally, S.C., the cause was submitted on the briefs of Stephen P. Juech, Michael J. Collard, and John P. Spector, of Frisch, Dudek, Ltd., Milwaukee.

Before WEDEMEYER, P.J., and SULLIVAN and FINE, JJ.

SULLIVAN, Judge.

Osie Cook appeals from a summary judgment dismissing his complaint for legal malpractice against Attorney Michael F. Hupy, Hupy's former law firm, and their respective liability insurers (collectively, "Hupy"). Hupy had previously represented Cook in a products liability action. Cook alleges that Hupy was negligent for failure to identify certain fact witnesses and for his failure to call them for his case-in-chief in that underlying action. We conclude that because the trial court granted summary judgment based upon an erroneous conclusion of law regarding the duty of an attorney, summary judgment must be reversed.

On appeal, Cook argues that the trial court erred when it determined, prior to summary judgment, that expert witnesses would be precluded from testifying on causation at the trial on legal malpractice. Hupy cross-appeals, arguing that the trial court erred in determining that damages assessed in the underlying action would not be at issue in the malpractice trial. We affirm the trial court's decision to preclude expert testimony. We reverse the trial court on the issue of damages, however, and conclude that the issue of damages must be retried.

BACKGROUND

Cook was employed as an over-the-road driver for a trucking company. In July 1983, he sustained a back injury when he fell while attempting to climb onto the top of his truck to adjust hoses that provided lighting for the vehicle. Cook had slipped from a small, oval-shaped, fold-down step manufactured and sold by Navistar. Cook retained Hupy to pursue a personal injury claim against Navistar.

That personal injury action was tried to the United States District Court for the Southern District of Indiana. The jury found that the oval step was an unreasonably dangerous product and assessed damages in excess of $2 million. Cook, however, was unable to recover any of the jury's award because the jury had found him to be 60% causally negligent. ¹

Cook's amended complaint alleges that Hupy breached his duty of care in his legal representation by failing to produce, as witnesses, other truck drivers who had similar experiences on the same kind of step. Cook contends that the testimony of these witnesses would have rebutted Navistar's argument that Cook was contributorily negligent in

climbing the truck. The trial court granted Hupy's motion for summary judgment. Cook appeals.

SUMMARY JUDGMENT

Our review of a trial court's grant of summary judgment is de novo. Capitol Indem. v. Reasbeck, 166 Wis.2d 332, 336, 479 N.W.2d 247, 249 (Ct.App.1991). We apply the standards set forth in sec. 802.08(2), Stats., in the same manner as the trial court. Voss v. City of Middleton, 162 Wis.2d 737, 748, 470 N.W.2d 625, 629 (1991). The summary judgment analysis was fully explained in Voss, and need not be repeated here. See id. at 747-48, 470 N.W.2d at 628-29.

The trial court granted summary judgment to Hupy, concluding as a matter of law that Hupy had fulfilled his duty of care to Cook. Although the trial court had found Hupy to be "negligent" in his investigation of the other truck drivers, it held that such negligence was "superfluous" because Hupy had proven a prima facie case against Navistar and had acted in good faith. We conclude that the trial court's definition of an attorney's duty ignores the standard of care an attorney must fulfill, and thus, summary judgment was improper. See Germanotta v. Nat'l Indem. Co., 119 Wis.2d 293, 297, 349 N.W.2d 733, 735 (Ct.App.1984) (we reverse trial court's grant of summary judgment where based on erroneous legal conclusion).

In a negligence action, three elements must be proven: "[a] duty; a breach of that duty; and resulting damages." ² Schicker v. Leick, 40 Wis.2d 295, 299, 162 N.W.2d 66, 69 (1968). Whether a duty exists is a question of law to be determined by the court. Id. "It is a lawyer's duty, in rendering legal services to a client, to exercise that degree of care, skill, and judgment which is usually exercised under like or similar circumstances by lawyers licensed to practice in this state." Wis J I--Civil 1023.5. See also Helmbrecht v. St. Paul Ins. Co., 122 Wis.2d 94, 111, 362 N.W.2d 118, 128 (1985). A lawyer is "not held to a standard of perfection or infallibility of judgment," but must "exercise his best judgment in light of his education and experience." Helmbrecht, 122 Wis.2d at 111, 362 N.W.2d at 128. " 'Judgment involves a reasoned process which presumes the accumulation of all available pertinent facts....' " Id. at 117, 362 N.W.2d at 131 (quoting Glenna v. Sullivan, 310 Minn. 162, 245 N.W.2d 869, 873 (1976) (Todd, J., concurring)). Generally, an attorney is not liable for errors in judgment that are made in good faith, are well-founded, and are in the best interests of the client. Helmbrecht, 122 Wis.2d at 117, 362 N.W.2d at 130-31.

Where an attorney has failed to exercise reasonable care and professional skill in making such a judgment, the attorney may be held liable for legal malpractice. See Helmbrecht, 122 Wis.2d at 111-18, 362 N.W.2d at 127-31. Whether the attorney has breached the applicable standard of care in representing the client "is a question of fact to be determined through expert testimony and usually cannot be decided as a matter of law." Gelsomino v. Gorov, 149 Ill.App.3d 809, 104 Ill.Dec. 1, 4, 502 N.E.2d 264, 267 (1986).

"Expert testimony is generally necessary in legal malpractice cases to establish the parameters of acceptable professional conduct, given the underlying fact situation. Expert testimony is not required in cases where the breach is so obvious that it may be determined by the court as a matter of law...." Helmbrecht, 122 Wis.2d at 112, 362 N.W.2d at 128; see also Olfe v. Gordon, 93 Wis.2d 173, 180-82, 286 N.W.2d 573, 576-77 (1980). "To hold that a person is not negligent as a matter of law, the court must be able to say that no properly instructed, reasonable jury could find, based upon the facts presented, that the defendants failed to exercise ordinary care." Ceplina v. South Milwaukee Sch. Bd., 73 Wis.2d 338, 342, 243 N.W.2d 183, 185 (1976).

While we take no position as to whether Hupy's alleged conduct breached In his own defense, Hupy asserts that his pretrial investigation into the testimony of these drivers was sufficient and that he made a good faith tactical decision in not presenting their testimony. He argues that such testimony would have amounted to collateral, cumulative evidence, and thus, was not necessary to prove the case against Navistar.

                the standard of care, we conclude that such conduct is not "so obvious that it may be determined by the court as a matter of law" that Hupy was not negligent.  Of the four drivers whose names Cook gave to Hupy, only one was contacted by Hupy before trial, and another was placed on the witness list, but was never contacted.  None of the drivers testified in Hupy's case-in-chief.  Apparently, Hupy tried to bring the testimony of two of the drivers in on rebuttal, but the federal district court excluded their testimony, asking Hupy, "Why is that rebuttal and not part of your case-in-chief?"   Cook argues that these drivers were ready to give critical testimony regarding slips they experienced on the same kind of step using the same climbing method that Cook had used when he fell from the truck.  Such testimony, he asserts, would have rebutted Navistar's argument that he was contributorily negligent, which, in turn, would have allowed him to recover some, if not all, of the damages
                

The question of whether an attorney's conduct fell below the applicable standard of care can rarely be disposed of on a motion for summary judgment where the case is basically factual and largely depends on oral testimony. See Balcom v. Royal Ins. Co., 40 Wis.2d 351, 357, 161 N.W.2d 918, 921 (1968); Ceplina, 73 Wis.2d at 342-43, 243 N.W.2d at 185 (summary judgment rarely granted in negligence cases). In any event, there is no authority to support the trial court's conclusion that an attorney's duty is fulfilled as a matter of law once he or she presents a prima facie case. ³

Because the trial court erred in its definition of an attorney's duty and in its application of that standard of care to the facts of this case, summary judgment is reversed.

TRIAL METHODOLOGY

Because we have concluded that the cause must be remanded for trial, we address the issues that pertain to the manner in which the trial will be conducted. Prior to making the summary judgment determination, the trial court ruled on the parties' pretrial motions regarding certain procedural aspects of the legal malpractice trial. The trial court precluded any expert testimony on causation, and instead, ordered that the issue of causation be presented through a reading of relevant portions of the transcript from the underlying suit, and, in addition, through the live testimony of the truck drivers who did not testify in that original action. The court also ordered that because the original jury had already...