Johnson v. Daggett, Van Dover, Donovan & Perry

Decision Date09 May 2000
Docket NumberNo. 4:99CV00417 WRW.,4:99CV00417 WRW.
Citation99 F.Supp.2d 1008
CourtU.S. District Court — Eastern District of Arkansas
PartiesSherman JOHNSON, Plaintiff, v. DAGGETT, VAN DOVER, DONOVAN & PERRY, PLLC, and Jesse B. Daggett, Defendants.

Philip M. Wilson, Little Rock, AR, Roy C. Dripps, The Lakin Law Firm, Wood River, IL, for Plaintiff.

Edwin L. Lowther Jr., Wright, Lindsey & Jennings, Little Rock, AR, B. Michael Easley, Easley, Hicky, Cline & Hudson, Forrest City, AR, Don S. McKinney, Adams and Reese LLP, New Orleans, LA, for Defendants.

ORDER

WILSON, District Judge.

This is a legal malpractice action regarding professional services rendered in a maritime lawsuit. Defendants represented Plaintiff in an action regarding injuries he sustained while working on a barge. Plaintiff contends Defendants did not sue all potentially responsible parties.

Defendants have moved for summary judgment on the issues of judgmental immunity, judicial estoppel, absence of genuine issue of material fact, and collateral estoppel. Plaintiff has responded, and Defendants have filed a reply brief. At the request of the Court, the parties have also filed supplemental letter briefs. For the reasons set forth below, Defendants' Motion for Summary Judgment is DENIED.

Plaintiff has moved for partial summary judgment on three issues: (1) statute of limitations; (2) validity of a release; and (3) seaworthiness of the vessel on which he was injured. Defendants have responded. For the reasons set forth below, Plaintiff's motion regarding the statute of limitation is GRANTED in part and DENIED in part: Plaintiff's motion regarding the validity of the release is GRANTED; and Plaintiff's motion regarding seaworthiness is DENIED.

I. Background

Plaintiff Sherman Johnson was employed as a deckhand aboard the M.V.J.O. Bradford (the "Bradford"), a towboat owned and operated by Jantran, Inc., Plaintiff's employer. On July 30, 1994, Plaintiff was awakened by another deckhand, L.C. Ross, to assist with a double cut at Arkansas River Lock & Dam 13, near Fort Smith.

A double cut requires that a load of barges be broken into two parts, or "cuts," of six barges each. This, in turn, enables each cut to pass through the lock separately. If the tow is headed downstream, as it was in this case, one cut is secured upstream while the other is placed in the lock, lowered, and then secured to the long wall on the downstream side of the dam. Once the first cut is lowered and secured, the towboat goes back into the lock to retrieve the second cut. The second cut is lowered through the lock, and then the two cuts are reconnected and the fleet proceeds down the river.

Plaintiff went through the lock on the first cut and, after it was secured to the long wall, remained alone on the first cut while the towboat and remaining crew went to retrieve the second cut. Plaintiff's job was to ensure that the first cut remained secured until the process was completed.

While the second cut was being lowered through the lock, the ropes securing the first cut broke and the barges began moving along the long wall. Plaintiff attempted to resecure the first cut to the wall, but he became entangled in the ropes. His leg was pulled against the kevel and amputated below the knee.

Plaintiff retained the services of Jesse B. Daggett and Daggett, Van Dover, Donovan & Perry, PLLC, defendants in this action, to represent him with respect to the injuries he sustained. Defendants filed a complaint on Plaintiff's behalf against the United States. They alleged that the Corps of Engineers' lock operator lowered the second cut at an excessive rate, causing turbulence, which in turn caused the rope on the first cut to break and caused the rope to tighten around Plaintiff's leg and pull him into the kevel. Defendants did not file an action against Jantran, Plaintiff's employer. Plaintiff's action against the United States, which he lost, was tried in October of 1997.

Plaintiff filed this case on June 11, 1999, alleging that Defendants should have sued Jantran, and that their failure to do so constitutes malpractice.

II. Standard for Summary Judgment

Summary judgment is appropriate only when there is no genuine issue of material fact, so that the dispute may be decided solely on legal grounds. Holloway v. Lockhart, 813 F.2d 874 (8th Cir.1987); Fed.R.Civ.P. 56. The Supreme Court has established guidelines to assist trial courts in determining whether this standard has been met:

The inquiry is the threshold inquiry of determining whether there is a need for trial — whether, in other words, there are genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The Eighth Circuit Court of Appeals has cautioned that summary judgment should be invoked carefully so that no person will be improperly deprived of a trial of disputed factual issues. See Inland Oil & Transport Co. v. United States, 600 F.2d 725 (8th Cir.1979), cert. denied, 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420 (1979). The Eighth Circuit set out the burden of the parties in connection with a summary judgment motion in Counts v. MK-Ferguson Co., 862 F.2d 1338 (8th Cir.1988):

[T]he burden on the moving party for summary judgment is only to demonstrate, i.e., `[to] point out to the District Court,' that the record does not disclose a genuine dispute on a material fact. It is enough for the movant to bring up the fact that the record does not contain such an issue and to identify that part of the record which bears out his assertion. Once this is done, his burden is discharged, and, if the record in fact bears out the claim that no genuine dispute exists on any material fact, it is then the respondent's burden to set forth affirmative evidence, specific facts, showing that there is a genuine dispute on that issue. If the respondent fails to carry that burden, summary judgment should be granted.

Id. at 1339 (quoting City of Mt. Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273-274 (8th Cir.1988) (citations omitted) (brackets in original)). Only disputes over facts that may affect the outcome of the suit under governing law will properly preclude the entry of summary judgment. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

III. Defendants' Motion for Summary Judgment
A. Judgmental Immunity

The Arkansas Supreme Court has stated:

An attorney is negligent if he or she fails to exercise reasonable diligence and skill on behalf of the client.... In order to prevail on a claim of legal malpractice, a plaintiff must prove that the attorney's conduct fell below the generally accepted standard of practice and that such conduct proximately caused the plaintiff damages.

Pugh v. Griggs, 327 Ark. 577, 581, 940 S.W.2d 445, 447 (1997). However,

An attorney is not liable to a client when, acting in good faith, he or she makes mere errors of judgment.... Moreover, attorneys are not, as a matter of law, liable for a mistaken opinion on a point of law that has not been settled by a court of highest jurisdiction and on which reasonable attorneys may differ.

Id. at 581-82, 940 S.W.2d at 447. This defense is often referred to as "judgmental immunity."

Defendants contend that they are entitled to summary judgment because the decision not to sue Jantran was a judgment call made in good faith.1 They claim that Plaintiff told them not to sue Jantran, and that their subsequent research and fact investigation supported that decision.

Plaintiff has provided an affidavit of an expert, Sandor Korein, who says that the proper standard which should have been exercised by Defendants in a case involving maritime law included the following obligations:

1) To investigate fully and adequately all possible claims of Plaintiff against all potentially responsible parties, including Jantran;

2) To advise Plaintiff of the scope of his employer's legal duty, including that the employer has a non-delegable duty to provide a safe place to work and that "fault" is a concept completely divorced from Plaintiff's claim for unseaworthiness and the absence of "fault" did not preclude a substantial recovery by Plaintiff against Jantran;

3) To inform Plaintiff of the results of that investigation at least in sufficient time to file a suit before the statute of limitations ran; and

4) To sue Jantran or to obtain Plaintiff's written informed consent not to institute such suit. See Affidavit of Sandor Korein, Exhibit 3 to Plaintiff's Response to Defendants' Motion for Summary Judgment.

Mr. Korein concluded that Defendants breached the standard of care. He states that Defendants failed to obtain the informed consent of Plaintiff by failing to investigate in any meaningful manner the potential claim against Jantran and by failing to provide that information to Plaintiff. With regard to Plaintiff's early instruction not to sue Jantran, Mr. Korein stated that "[c]hoosing to rely on the Plaintiff's perception of the legal responsibility of the employer is to abdicate the professional trust reposed in the attorney by the client." Id.

In support of their position, Defendants cited Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997), where Ms. Pugh's former attorney nonsuited a medical malpractice claim and failed to refile the claim until after the one year savings clause had run. Ms. Pugh sued her former attorney for negligence in failing to prosecute the first lawsuit.2 The Supreme Court held that, pursuant to Arkansas Rule of Civil Procedure 41, the decision to take a nonsuit was clearly within the attorney's discretion. See id. Pugh is a recognition that, under Arkansas law, an attorney may nonsuit a medical malpractice case for any reason. It does not stand for the proposition that the choice of whom to sue is left completely to the discretion of the attorney.

Defendants...

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