Joos v. Auto-Owners Ins. Co., AUTO-OWNERS

• Decision Date: 19 December 1979
• Docket Number: AUTO-OWNERS,Docket No. 78-3455
• Citation: 94 Mich.App. 419,288 N.W.2d 443
• Parties: Gail A. JOOS and Linda K. Avery, Plaintiffs-Appellants, v.INSURANCE COMPANY, Defendant, and William J. Drillock, Defendant-Appellee. 94 Mich.App. 419, 288 N.W.2d 443
• Court: Court of Appeal of Michigan — District of US

Page 443

288 N.W.2d 443

Gail A. JOOS and Linda K. Avery, Plaintiffs-Appellants, v. AUTO-OWNERS INSURANCE COMPANY, Defendant, and William J. Drillock, Defendant-Appellee.

Docket No. 78-3455.

94 Mich.App. 419, 288 N.W.2d 443

Court of Appeals of Michigan.

Dec. 19, 1979.

Released for Publication Feb. 28, 1980.

[94 MICHAPP 420] H. James Starr, Lansing, for appellants.

John L. Collins, Jonathan E. Raven, Lansing, for appellee.

Before ALLEN, P. J., and T. M. BURNS and HOLBROOK, ^* JJ.

T. M. BURNS, Judge.

Plaintiffs appeal of right a November 28, 1977, lower court order dismissing their legal malpractice action against defendant William J. Drillock on the ground that they had failed to establish through expert testimony the standard of care common to members of the legal profession. We reverse.

On January 1, 1972, plaintiff Joos was one of several passengers in an automobile that was involved in an accident with a vehicle driven by plaintiff Avery. Joos and five other passengers of the car in which she had been riding filed suit against Avery and her insurer, Auto-Owners Insurance Company. Defendant Drillock subsequently[94 MICHAPP 421] was retained by Auto-Owners to represent itself and Avery in that litigation.

Under her policy with Auto-Owners, Avery was insured to a maximum of $40,000 per accident and $20,000 per person. All plaintiffs except Joos settled with Avery prior to trial for sums that totalled $23,000. Although Joos offered to settle her claim within Auto-Owners' remaining liability under the policy, no settlement occurred and she proceeded to trial where she received a jury award of $65,000, exclusive of interest and costs.

Some time in April of 1977, Avery and Joos, to whom Avery had assigned a portion of her purported claim, filed the instant legal malpractice suit. At the November, 1977, trial of this cause, plaintiff Avery testified that defendant Drillock never informed her, prior to the beginning of the automobile negligence trial, that Joos had made several offers to settle within the limits of the policy. It was only on the first day of that trial that she became aware that Joos was willing to settle within the available insurance coverage.

Although she attempted to persuade defendant to settle he advised her that he could not do so because he did not have authority to settle for the amount proposed by Joos. Defendant further told her that she should put a statement on the record as to her desire to settle within the limits of the policy. Plaintiff Avery did so. Finally, Avery testified that on the second day of the prior trial, defendant advised her that he had received authority to settle. When she responded that she would like to have the case settled, defendant refused to do so because he thought he could "beat the case".

Following the completion of plaintiff Avery's testimony, plaintiffs rested their case. Defendant [94 MICHAPP 422] moved to have plaintiffs' case dismissed on the ground that plaintiffs had failed to offer expert testimony to establish the standard of care owed by an attorney or a breach of that standard. The lower court agreed and dismissed plaintiffs' action. Plaintiffs now appeal and we reverse.

The issue presented, as to whether a plaintiff in a legal malpractice action must offer expert testimony as to the standard of care to which an attorney will be held and as to a violation of that standard, has not been addressed previously by any published Michigan authority. As a general principle, an attorney must bring to bear the skill, learning, and ability of the average practitioner of law when conducting legal business for a client. He or she must exercise ordinary care or diligence in the prosecution of the client's interests. Babbitt v. Bumpus, 73 Mich. 331, 41 N.W. 417; 16 Am.St.Rep. 585 (1889), 7 Am.Jur.2d, Attorneys at Law, § 168, pp. 146-147.

In our attempt to resolve the issue before us, we have been guided somewhat by Michigan case law authority in the area of medical malpractice. The commonly held rule in medical malpractice cases is that expert testimony is a prerequisite to a plaintiff-patient's right to recover from either a physician or a hospital. Bivens v. Detroit Osteopathic Hospital, 77 Mich.App. 478, 488, 258 N.W.2d 527 (1977), Rev'd on other grounds 403 Mich. 820 (1978). However, this is not an absolute principle of law devoid of exceptions.

In Lince v. Monson, 363 Mich. 135, 108 N.W.2d 845 (1961), the Michigan Supreme Court held that where the absence of professional medical care was so manifest that within the common knowledge and experience of ordinary laymen it could be said that the conduct was careless, a plaintiff could [94 MICHAPP 423] maintain a medical malpractice action without the necessity of offering expert medical testimony as to the standard of care in the medical community. See also, Haase v. DePree, 3 Mich.App. 337, 142 N.W.2d 486 (1966).

Although there is no uniformity of decision in the cases of other states that have...