Huntington v. Fishman

• Decision Date: 11 February 1994
• Docket Number: No. A93A1795,A93A1795
• Citation: 212 Ga.App. 27,441 S.E.2d 444
• Parties: HUNTINGTON v. FISHMAN.
• Court: Georgia Court of Appeals

Page 444

441 S.E.2d 444

212 Ga.App. 27

HUNTINGTON v. FISHMAN.

No. A93A1795.

Court of Appeals of Georgia.

Feb. 11, 1994.

Mohr & Farnham, David J. Farnham, Atlanta, for appellant.

Weener & Associates, Paul S. Suda, Atlanta, for appellee.

SMITH, Judge.

Michael G. Huntington brought suit against his former attorney, Jeffrey M. Fishman, for professional malpractice related to Fishman's handling of a personal injury action in which Huntington was the plaintiff. The trial court granted Fishman's motion for summary judgment, and Huntington appeals.

On April 30, 1987, Huntington was involved in an automobile collision with Lynn Pickard. Huntington contends that he incurred medical expenses exceeding $3,500 as a result. Pickard's insurer, Georgia Farm Bureau Mutual Insurance Company, initially offered $2,000 to settle Huntington's claim. In February or March 1989, Huntington hired Fishman to represent him in the matter. Fishman filed suit on Huntington's behalf on March 22, 1989. According to Huntington, Fishman failed to exercise due diligence in locating and perfecting service upon Pickard within the two-year statute of limitation for actions based on injury to the person. O.C.G.A. § 9-3-33. Fishman appears to concede that at some point he discontinued efforts to locate Pickard, but he asserts that Huntington refused to assume the financial responsibility for the expenses involved in that effort. Fishman maintains that Huntington instead instructed him to settle the claim. It is Huntington's position, supported by affidavit, that Fishman never informed him that Pickard could not be located and that he therefore never refused to assume financial responsibility for paying an individual to perfect service. Fishman offers no affidavit or other evidence supporting his position regarding Huntington's knowledge of, or decisions regarding, the issue of late service on Pickard.

In July 1989, Fishman informed Huntington that he had been offered $2,500 to settle his claim. Huntington refused the offer, believing that his case was worth much more. Huntington contends that during a second conversation, Fishman again advised him to accept the settlement and further informed him that, if he did not do so, Fishman would no longer pursue the case. Huntington then agreed to settle his claim for $2,500. Essentially, it is Huntington's position that the settlement (hereinafter the "Fishman settlement") was inadequate because Fishman failed to diligently pursue Pickard and that otherwise there would have been no incentive for Fishman to advise Huntington to settle for only $2,500.

When Huntington went to Fishman's office to sign the settlement documents, he discovered that the $2,500 settlement was dependent upon his wife's willingness to forego any loss of consortium claim she might have against Pickard. The record does not indicate that Fishman represented Huntington's wife at any time, and Huntington states in his affidavit that he was not aware prior to this occasion that his wife could assert such a claim. Huntington then refused to accept the Fishman settlement and terminated Fishman.

Huntington then hired new counsel, Michael Warshauer. Huntington was informed by Warshauer that he was bound by the settlement negotiated by Fishman, at least to the extent of Huntington's claims. See, e.g., USCR 4.12. Warshauer has filed an affidavit affirming that it was, and continues to be, his opinion that Fishman settled Huntington's claims for $2,500 as a matter of law and that Huntington's decision to return the check did not change this result. Warshauer nevertheless managed to negotiate a final settlement (hereinafter the "Warshauer settlement") totalling $4,000 instead of the original $2,500. Warshauer contends that the difference reflects only additional negotiations regarding his wife's loss of consortium claim. ¹

"[I]n a legal malpractice action, the client has the burden of establishing three elements: (1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff. [Cits.]" Rogers v. Norvell, 174 Ga.App. 453, 457, 330 S.E.2d 392 (1985) (physical precedent, but quoted portion cited with approval in Nix v. Crews, 200 Ga.App. 58, 59(1), 406 S.E.2d 566 (1991)). In an effort to negate the element of "proximate cause," Fishman relies on the affidavit of John Stell, attorney for Pickard's insurer, stating that "[a]t no time was I instructed ... to file a motion to enforce a settlement agreement based upon the earlier acceptance by plaintiff ... of the sum of $2,500.00 which he had rejected and returned to the insurer in August of 1989. Similarly, at no time did I inform the Huntington[s]' attorney, David Warshauer, of any plans to enforce the alleged settlement."

Warshauer filed an affidavit in response, stating, in pertinent part, as follows: "The return of the $2,500.00 check to Ms. Pickard's insurance company did not, in my opinion, terminate the settlement which had already been reached. I unquestionably recall that Mr. Stell agreed with this interpretation and understanding of the law. As a result, we then focused our attention on settling Mrs. Huntington's case and I endeavored to maximize her recovery for loss of consortium. I believe Mr. Huntington's case was worth substantially more than $2,500.00 but there was nothing I could do to improve his position because of the actions Mr. Fishman had already taken. I did threaten to get out of the [Fishman] settlement but used these threats only as a means of increasing the offer on Mrs. Huntington."

The trial court, relying on the holding of Rogers v. Norvell, supra, and the affidavit submitted by attorney Stell, granted summary judgment to Fishman. The trial court observed that "[a]lthough Mr. Warshauer contradicts Mr. Stell's affidavit in part, this does not negate the fact that at the time Mr. Huntington signed the release there was a viable action pending and the defendant's [attorney] had not filed any [motion] to enforce [the Fishman settlement]."

"To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56(c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no...