Supik v. Bodie

• Decision Date: 29 October 2003
• Docket Number: No. 1697,1697
• Citation: 152 Md. App. 698,834 A.2d 170
• Parties: Jeffrey SUPIK, et ux., v. BODIE, NAGLE, DOLINA, SMITH & HOBBS, P.A., et al.
• Court: Court of Special Appeals of Maryland

834 A.2d 170

152 Md. App. 698

Jeffrey SUPIK, et ux., v. BODIE, NAGLE, DOLINA, SMITH & HOBBS, P.A., et al.

No. 1697, Sept. Term, 2002.

Court of Special Appeals of Maryland.

October 29, 2003.

Alan J. (Belsky, Weinberg & Horowitz, L.L.C. on the brief), Baltimore, for appellant.

Janet A. MacDonald (Charles Martinez, Eccleston & Wolf on the brief), Baltimore, for appellee.

Argued before ADKINS, KRAUSER and SHARER, JJ.

SHARER, Judge.

In this legal malpractice case, the Circuit Court for Baltimore County granted summary judgment in favor of appellees, ruling that the negligence claim of appellants, Jeffrey Supik and Shirley Supik, was time-barred by Maryland's three-year statute of limitations.

On March 31, 2000, the Supiks filed a legal malpractice action against their former attorneys, Thomas Dolina, Michael Smith, and Kelly Koermer, and the law firm by which they were employed, Bodie, Nagle, Dolina, Smith & Hobbs, P.A.¹ The Supiks had retained Bodie, Nagle in 1993 to represent them in a toxic tort action against several pest control companies, and in an action against their homeowners' insurer regarding the terms of coverage related to the damages caused by the toxic tort. On the recommendation of Bodie, Nagle, the Supiks settled with all of the defendants in that case. The crux of the legal malpractice case is that, after the settlements, the Supiks came to believe that they had settled the toxic tort case against the pest control companies for less than full value. The Supiks filed a claim against appellees alleging, among other things, professional negligence, breach of fiduciary duty, negligent misrepresentation, and fraudulent misrepresentation.

Following the completion of discovery, Bodie, Nagle moved for summary judgment on the basis that appellants knew, or reasonably should have known, about the negligent representation prior to March 31, 1997. Therefore, appellees argued that Maryland's three-year statute of limitations on legal malpractice barred the action. The trial court agreed.²

Appellants have presented us with one question:

Did the trial court err in granting the motion for summary judgment on the grounds that the statute of limitations accrued more than three years prior to the filing of appellants' complaint?

We answer "Yes," because a legal cause of action did not arise until the Supiks settled the underlying tort case, as that event fixed the date of their injury. Moreover, to the extent that a cause of action might have arisen prior to the date of settlement, the question of limitations in this case is one of fact; thus, it was error for the court to grant summary judgment.

FACTUAL and PROCEDURAL BACKGROUND

Jeffrey and Shirley Supik, appellants, own property at 3523 and 3525 North Rolling Road in Baltimore. On March 17, 1993, the Supiks retained Bodie, Nagle to represent them in toxic tort litigation stemming from their alleged exposure to chlordane³ that was applied on their property in 1980 and 1981. The toxic tort litigation, filed August 5, 1994, involved claims against two companies, B & B Exterminators, Inc. and its successor in interest, Home Paramount Pest Control Company. The Supiks also sued their homeowners' insurer, American Insurance Company (a subsidiary of Fireman's Fund Insurance Company), as a result of a dispute about the extent of coverage provided by their policy.

Most of Bodie, Nagle's representation of the Supiks occurred in 1995, 1996, and early 1997. Throughout the representation, the Supiks relied on the advice of Bodie, Nagle pursuant to the fiduciary attorney-client relationship. There is no dispute that the Supiks often questioned certain advice given by Bodie, Nagle, but they nonetheless agreed to follow the advice, because they presumed that the lawyers knew best, as discussed infra. Among the more significant controversies between the Supiks and Bodie, Nagle were (1) the attorneys' several attempts to settle the case without informing the Supiks, misinforming the Supiks regarding settlement, and/or botched settlement efforts, and (2) Bodie, Nagle's waiver of the Supiks' right to trial by jury over their objection and without their consent.⁴

An array of events occurred which the parties have addressed in their briefs, highlighting the imperfect attorney-client relationship. The Supiks assert:

(a) that the Appellees requested that Appellants keep a journal describing what had happened to them during the time they were exposed to Chlordane and that, despite representations by the Appellees that the journal would be kept confidential, the journal was turned over to defense counsel [and ultimately used to cross-examine appellants during depositions];

(b) [in regard to appellants' likelihood of prevailing against their homeowner insurer] a dispute between the Appellees and the Appellants arose in connection with the extent of coverage for property loss under their homeowners' policy for compensation related to Chlordane exposure. Appellants believed they had full replacement value whereas Appellees believed the policy provided for fair market compensation for property loss. [Appellants were never able to convince appellees, and they felt as though they should have been able to settle for more than $22,000.]

(c) that one of the Appellees, Kelly Koermer, represented to Appellants that a demand could be made upon the homeowner[s'] insurer in the amount of $450,000.00 [in 1995], when later [in 1996] it was learned by Appellants that the settlement demand had actually been made as to all the defendants in the Toxic Tort Case, and not just simply the homeowner[s'] insurer defendant, American Insurance Company.

(d) that in the latter part of 1996, Appellee, Thomas Dolina, advised Appellants that he did not believe they would prevail on the multiple chemical sensitivity claims they were asserting. Although Appellants did not agree with Mr. Dolina's assessment, they agreed to drop their multiple chemical sensitivity claim.

(e) that Mr. Dolina advised Appellants he was concerned they would lose their psychological claim for damages in the case if it were to proceed to trial. This upset Mr. Supik who was concerned that the Appellants were adopting the defense spin that the Appellants suffered pre-existing psychological conditions. [Appellants felt that Dolina was not giving accurate information in this regard.]

(f) that Mr. Dolina made a demand on behalf of the Appellants in the amount of $550,000.00 [in December 1996] which they had not authorized and which upset them when they learned about it.

(g) that Mr. Dolina advised Appellants that, in his opinion, Appellants' case had an approximate settlement value of $300,000.00 Mr. Supik disagreed with that assessment but did not discuss the issue with any of the Appellees. [Although, appellee Kelly Koermer had "often said don't worry about it, that's Tom, he always deals with the case as a devil's advocate."]

(h) that as of January 2, 1997, Appellants did not believe they had sufficient information to consider the possibility of any settlement discussions, despite Mr. Dolina's desire to discuss settlement with the homeowners' insurer.

(i) that on January 6, 1997, Mr. Dolina wrote to Appellants advising that he was considering converting the case from a jury trial to a bench trial. Appellants were unhappy with Mr. Dolina's recommendation to convert their case [as] is reflected in a letter dated January 14, 1997.

(j) that Appellants later learned that Mr. Dolina had, despite their objection, converted the case to non-jury. This angered Appellants, who demanded that Mr. Dolina reverse his actions and change the case back to a jury trial because they believed they had a better chance of success if the case were heard by a jury.

(k) that Appellees represented to Appellants that they had received an estimate from someone willing to demolish or dispose of one of the two contaminated properties for $9,500.00. The Appellees, however, did not provide Appellants with copies of that estimate despite repeated written and oral requests for same.

(l) that on March 7, 1997, the Appellants reluctantly agreed to settle their claim with the homeowner[s'] insurer for $22,000.00 despite their strong desire not to settle the claim. Appellants depict their decision to settle the Homeowners' Case as being made under duress.

(m) that following their settlement of the Homeowners' Case, Appellants and the Appellees continued their efforts to prepare for the Toxic Tort Case against B & B and Home Paramount [scheduled for April 1, 1997]. The Appellants expressed concerns as to the method by which they were being prepared [in a March 19, 1997, letter to Mr. Dolina].

(n) that throughout the years 1996 and 1997, Appellants made numerous requests for copies of the reports and depositions generated in their case so they would be able to evaluate any settlement offers conveyed and have a better understanding as to the extent of their health conditions and the extent of any contamination to their persons and property. Such requests were made verbally and in writing, although Appellants did not receive all the requested documents until sometime after December of 2000.

The essence of the Supik's malpractice action is that they settled the toxic tort case against the pest control companies for less than full value.⁵ Unknown to the Supiks, the attorneys had relied on remediation estimates from the pest control companies without seeking an independent estimate from an expert of their own choosing. The settlement with B & B Exterminators, Inc. and Home Paramount Pest Control Company occurred on April 1, 1997, and was placed on the record in open court on April 3, 1997.⁶

In early May 1997, the Supiks spoke with one of the experts who had planned to testify on their behalf had their case gone to trial. They learned from him that they had made a "major mistake" by settling the toxic tort case for $175,000 because, in the expert's view, the claim had a...