Williams v. Beckham & McAliley, P.A., 90-00472

• Decision Date: 19 June 1991
• Docket Number: No. 90-00472,90-00472
• Citation: 582 So.2d 1206
• Parties: Judith WILLIAMS, as Personal Representative of the Estate of Tammy Sue Williams, and Bobby Williams, as Surviving Parents, Appellants, v. BECKHAM & McALILEY, P.A., a Florida Corporation, Appellee. 582 So.2d 1206, 16 Fla. L. Week. D1648
• Court: Florida District Court of Appeals

Page 1206

582 So.2d 1206

Judith WILLIAMS, as Personal Representative of the Estate

of Tammy Sue Williams, and Bobby Williams, as Surviving Parents, Appellants, v. BECKHAM & McALILEY, P.A., a Florida Corporation, Appellee.

No. 90-00472.

582 So.2d 1206, 16 Fla. L. Week. D1648

District Court of Appeal of Florida,

Second District.

June 19, 1991.

Rehearing Denied July 25, 1991.

Jeffrey A. Blau of Jeffrey A. Blau, P.A., Tampa, for appellants.

Charles W. Pittman and Ted R. Manry, III of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.

HALL, Acting Chief Judge.

The Williamses challenge the trial court's entry of summary judgment in favor of the law firm Beckham & McAliley in this legal malpractice action. The Williamses contend summary judgment is inappropriate in this instance because there are genuine issues of material fact in dispute. We disagree and affirm.

In December 1979, Tammy Sue Williams, daughter of the appellants, Judith and Bobby Williams, was killed in an automobile accident. The Williamses thus hired Beckham & McAliley to represent them in an action for the wrongful death of Tammy Sue. Though Beckham & McAliley did actually file the lawsuit, the action was dismissed in August 1983 for failure to prosecute. Thereafter, the Williamses filed this legal malpractice action against Beckham & McAliley, alleging the law firm failed to properly represent them in their wrongful death suit.

Both parties filed motions for summary judgment which were initially denied. In support of its renewed motion for summary judgment, Beckham & McAliley submitted the deposition of Homer M. Marlow, an attorney who specializes in professional liability, including legal malpractice. Mr. Marlow testified that Beckham & McAliley conducted a competent and thorough investigation into the wrongful death of Tammy Sue Williams. Subsequent to a hearing on the renewed motion, the trial court entered final summary judgment in favor of Beckham & McAliley. The Williamses then filed a timely notice of appeal.

The Williamses argue they have presented genuine issues of material fact by alleging that Beckham & McAliley failed to properly investigate appropriate remedies available to the Williamses. Thus, they contend Beckham & McAliley was negligent in failing to prosecute a claim against the driver of the vehicle in which Tammy Sue was riding at the time of her death.

Where a motion for summary judgment has been made, the burden of proving the absence of a genuine issue of material fact is upon the moving party. Once the moving party has met its burden, it is incumbent upon the opposing party to show genuine issues of material fact do in fact exist. See Holl v. Talcott, 191 So.2d 40 (Fla.1966). While Beckham & McAliley has successfully met its burden, we find the Williamses have failed to meet theirs.

Through the affidavits and depositions of Mr. Marlow and Charles Sansone, the attorney from Beckham & McAliley who personally handled the Williamses' wrongful death suit, the record shows that a detailed investigation into Tammy Sue's death was in fact conducted.

Tammy Sue Williams was a passenger in an automobile operated by Bruce Lynch when it was struck by a truck operated by Mr. Chancey. Beckham & McAliley obtained documentation of the Florida Highway Patrol's homicide investigation of the accident. That investigation revealed Chancey was entirely at fault. The report showed the Lynch vehicle was proceeding lawfully through an intersection on a green light when Chancey entered the same intersection on a red light traveling at approximately eighty miles per hour. Chancey had been drinking and had increased his speed to beat the Lynch vehicle through the intersection. Though Chancey was ultimately liable for Tammy Sue's death, he had neither insurance coverage nor an estate to speak of. ¹

Upon discovering that damages could not be collected from Chancey, Beckham and McAliley investigated the possibility of relief through uninsured motorists coverage. Unfortunately, that avenue of recovery was precluded by the fact the Williamses had rejected such coverage upon the issuance of their own automobile insurance policy.

Beckham & McAliley also examined other possibilities. For instance, they hired an expert to determine whether the Florida Department of Transportation could be held liable for negligent design or...