Cuffie v. Armstrong

• Decision Date: 19 May 2020
• Docket Number: A20A0072
• Citation: 355 Ga.App. 471,843 S.E.2d 599
• Parties: CUFFIE et al. v. ARMSTRONG et al.
• Court: Georgia Court of Appeals

355 Ga.App. 471

843 S.E.2d 599

CUFFIE et al.

v.ARMSTRONG et al.

A20A0072

Court of Appeals of Georgia.

May 19, 2020

Reconsideration Denied June 11, 2020

The Cuffie Law Firm, Thomas F. Cuffie, Magua B. Benson, Carla L. Hines, for appellants.

Gardner Trial Attorneys, Timothy J. Gardner, for appellees.

Markle, Judge.

After JoEtta Armstrong was injured and her husband was killed in a motorcycle accident, she hired attorney Thomas Cuffie to handle her claims against the other drivers. Dissatisfied with the representation she received, Armstrong filed a legal malpractice claim against Cuffie, the Cuffie Law Firm, and Cuffie and Associates, P.C. (collectively "the Cuffie Firm"). The trial court denied the Cuffie Firm's motion to dismiss the suit as barred by the statute of limitation and also denied its motion for reconsideration. We granted the Cuffie Firm's application for interlocutory appeal, and this appeal followed. We now affirm in part and reverse in part.

We review a trial court's denial of a motion for reconsideration for abuse of discretion. Stephens v. Alan V. Mock Constr. Co. , 302 Ga. App. 280, 281 (1), 690 S.E.2d 225 (2010). "An abuse of discretion occurs where the trial court significantly misapplies the law or clearly errs in a material factual finding." (Citation, punctuation and emphasis omitted.) Postell v. Alfa Ins. Corp. , 332 Ga. App. 22, 28 (2) (a) (iii), 772 S.E.2d 793 (2015). When considering a motion to dismiss, the trial court, and this Court, must construe the pleadings in the light most favorable to the plaintiff, and resolve any doubts in the plaintiff's favor. Bd. of the Regents of Univ. System of Ga. v. Brooks , 324 Ga. App. 15, 15-16, 749 S.E.2d 23 (2013).

So viewed, the record shows that the accident occurred in early August 2009. Jarvis Gibson, the driver of one of the cars involved in the accident, was charged with various driving violations based on the accident. A few days after the accident, Armstrong hired Cuffie, and she signed a written contract for representation.¹

In January 2010, Cuffie received a letter from State Farm regarding underinsured motorist ("UM") coverage under Armstrong's policy. Neither Cuffie nor anyone else from the Cuffie Firm followed up on the UM coverage or presented a UM claim to State Farm.

On March 2, 2010, the Cuffie Firm filed a wrongful death and personal injury suit against Gibson and the others involved in the accident, and their respective insurance companies and employers: RLI Insurance Company, Milan Express Company, Raymond Smith, Patrick Riley, and United Road Services. On November 2, 2011, a jury acquitted Gibson of all criminal charges arising from the accident.

In August 2013, Armstrong settled her claims against RLI Insurance, Milan Express, and Smith for $1,250,000, and she signed a release for any claims she might have had against these defendants. Thirteen months later, Armstrong settled her remaining claims against Gibson for $51,000. Pursuant to a consent judgment, Gibson's insurance covered $50,000, and Gibson was responsible for the remaining $1,000. The consent judgment also included language that Armstrong was responsible for her own medical care and any lien, including those arising under the Employee Retirement Income Security Act ("ERISA"). Cuffie never advised Armstrong that the ERISA lien would remain her responsibility; rather, as Armstrong alleged in her complaint, Cuffie advised her that the lien would be "handled."

In March 2015, Armstrong's husband's employer, Siemens Corporation, sued Armstrong to collect on an ERISA lien that had been filed against her for medical bills related to her own injuries. Armstrong ultimately settled the lien for $84,885.29, which was more than the original lien, and she incurred significant attorney fees in defending the ERISA suit.

In 2017, Armstrong filed suit for legal malpractice against the Cuffie Firm. She voluntarily dismissed that action and then timely filed the instant renewal action, alleging breach of contract and breach of fiduciary duty arising from the failure to seek UM coverage or to advise her about the ERISA lien.² She also sought attorney fees under OCGA § 13-6-11.

The Cuffie Firm filed its answer and counterclaim, and moved to dismiss the complaint as barred by the applicable statute of limitation. Relying on OCGA § 33-7-11 (d), the Cuffie Firm argued that the statute of limitation for Armstrong's malpractice claim based on the UM coverage began to run in 2011 when it could no longer seek UM coverage. Thus, the four-year limitation period applicable to legal malpractice claims expired in 2015. It further argued that the malpractice claim related to the ERISA lien was barred by the statute of limitation and failed to state a claim because it had no duty to negotiate Armstrong's medical lien. Armstrong responded, arguing that the time period to file the UM claim tolled under OCGA § 9-3-99 until two years from the completion of Gibson's criminal trial, and the limitation period for her malpractice suit did not begin to run until the expiration of that two-year period. As such, she asserted that her complaint was timely because it was filed before November 2017. She also contended that her malpractice claim arising from the ERISA lien was timely because the Cuffie Firm repeatedly told her throughout 2014 that the lien was being handled.

The trial court denied the motion to dismiss, summarily finding that the claims were timely filed. The Cuffie Firm moved for reconsideration, which the trial court also denied, and the Cuffie Firm then requested and received a certificate of immediate review. We granted the application for interlocutory review, and this appeal followed.

1. The Cuffie Firm first argues that the trial court erred in denying its motion to dismiss the malpractice claims arising from its alleged failure to seek UM coverage because the complaint was untimely and not subject to the tolling provisions of OCGA § 9-3-99. We agree.

"Whether a cause of action is barred by the statute of limitation generally is a mixed question of law and fact, but the question is one of law for the court when the facts are not disputed." Harrison v. McAfee , 338 Ga. App. 393, 395 (2), 788 S.E.2d 872 (2016).³

"A legal malpractice action may sound either in tort or in contract, depending on the circumstances. It has long been the law in this state that a cause of action for legal malpractice, alleging negligence or unskillfulness, sounds in contract (agency)." (Citation and punctuation omitted.) Plumlee v. Davis , 221 Ga. App. 848, 851 (2), 473 S.E.2d 510 (1996) ; see also Hamilton v. Powell, Goldstein, Frazer & Murphy , 167 Ga. App. 411, 412-413 (1), 306 S.E.2d 340 (1983). A cause of action against an attorney sounding in contract arises from the breach of a legal duty imposed by the contract of employment. Long v. Wallace , 214 Ga. App. 466, 467 (2), 448 S.E.2d 229 (1994). As such, it is governed by the four-year statute of limitation.⁴ See id. ; see also OCGA § 9-3-25. Here, Armstrong does not seek tort damages for any "injuries to the person" within the meaning of OCGA § 9-3-33. Ballard v. Frey , 179 Ga. App. 455, 459 (3), 346 S.E.2d 893 (1984). Rather, the complaint alleges a legal malpractice claim based on breach of contract for failing to serve State Farm, the UM carrier, with a claim to recover benefits. Id. Because the action sounds in contract, the four-year statute of limitation applies. Long , 214 Ga. App. at 467 (2), 448 S.E.2d 229. Thus, we must determine when the alleged legal malpractice claim accrued.

In Georgia, "[a]n action for attorney malpractice accrues and the period of limitations begins to run, from the date of the attorney's breach of duty, that is, from the date of the alleged negligent or unskillful act." (Citation and punctuation omitted.) Royal v. Harrington , 194 Ga. App. 457, 458, 390 S.E.2d 668 (1990). When a person injured in a car accident learns after bringing an action that the vehicle involved was uninsured or underinsured, OCGA § 33-7-11 (d) provides, in pertinent part, that

the insurance company issuing the [UM] policy shall be served within either the remainder of the time allowed for valid service on the defendant or 90 days after the date on which the party seeking relief discovered, or in the exercise of due diligence should have discovered, that the vehicle was uninsured or underinsured, whichever period is greater.

OCGA § 33-7-11 (d) further requires a plaintiff to serve his UM carrier "as though the insurance company [issuing the policy] were actually named as a party defendant."⁵ See also Vaughn v. Collum , 136 Ga. App. 677, 678-679, 222 S.E.2d 37 (1975) (holding that an uninsured motorist carrier had the right to notice of suit on the same basis as though a defendant and must be served as prescribed by statute within the applicable statute of limitation).

Here, Armstrong alleged, and the record showed, that the Cuffie Firm knew or should have known in January 2010 that a potential claim for UM coverage existed against State Farm. And this information preceded the filing of the wrongful death suit in March 2010. Thus, under OCGA § 33-7-11 (d), the Cuffie Firm had to serve State Farm as though it were a party to the suit. See OCGA § 33-7-11 (d) (where "a reasonable belief exists that the vehicle is an uninsured motor vehicle ... a copy of the action and all pleadings thereto shall be served as prescribed by law upon the insurance company issuing the policy as though the insurance company were actually named as a party defendant"). Accordingly, the cause of action for malpractice arising from the alleged failure to seek UM coverage accrued at that time and triggered the running of the four-year limitation period. The original complaint, filed in 2017, was therefore untimely.

Armstrong contends, however, that the statute of limitation was tolled under OCGA § 9-3-99 until the resolution of the criminal case against Gibson, which occurred on ...