Kentucky Federal Judge Dismisses Comair Crash Victim's Consoritum Claims

Judge Dismisses Comair Plane Crash Victim's Consortium Claims

As reported by the Lexington-Herald Leader, U.S. District Court Judge Karl Forrester has ruled that those who lost loved ones in the 2006 crash of a
Comair plane aren't entitled under Kentucky law to sue the airline for
loss of companionship. 

Kentucky is among four states that don't allow jury awards for loss
of companionship by surviving spouses. There also is no state provision
for companionship damages for adult children or their parents, although
the state does allow children younger than 18 to sue for damages when a
parent is wrongfully killed.
You can read the order here.

Think You're Safe In Your Hummer? Think Again...

If you are ever involved in a car wreck or semi-truck accident you probably think you want to be in the biggest, heaviest automobile or suv; however, you may be surprised to know that one of the vehicles everyone thinks is safe, isn't.  As a lawyer that represents people who were hurt or killed in car or truck wrecks, there aren't many things on which I can agree with the Insurance Institute for Highway Safety, but even I pay attention when they do their annual surveys on the safest vehicles.

According to the report released by the Insurance Institute for Highway Safety, the safest mid-size SUV was the 2009 Nissan Murano.  What might surprise most is that the Hummer H3 had one of the poorest showings.  The General Motors' H3 was the only vehicle in the group that did not receive the top rating for frontal crash protection and, even more disturbing, it received the lowest rating, "poor", in the rear crash test.  Of important note, the H3  and the Chrysler Jeep Liberty and Dodge Nitro are all three built on the same platform. 

So, just because its big doesn't mean its safe.  Do your research by reading the full 5-page report here and drive safely. 

Here are the Institutes "safest" vehicles:

Top Safety Pick 2008 award winners

Large cars

Audi A6

Cadillac CTS

Ford Taurus with optional electronic stability control

Mercury Sable with optional electronic stability control

Volvo S80

Midsize cars

Audi A3

Audi A4

Honda Accord 4-door models

Saab 9-3

Subaru Legacy with optional electronic stability control

Midsize convertibles

Saab 9-3

Volvo C70

Small car

Subaru Impreza with optional electronic stability control

Minivans

Honda Odyssey

Hyundai Entourage

Kia Sedona

Midsize SUVs

Acura MDX

Acura RDX

BMW X3

BMW X5

Ford Edge

Ford Taurus X

Honda Pilot

Hyundai Santa Fe

Hyundai Veracruz built after August 2007

Infiniti EX35

Lincoln MKX

Mercedes M class

Nissan Murano

Saturn VUE built after December 2007

Subaru Tribeca

Toyota Highlander

Volvo XC90

Small SUVs

Honda CR-V

Honda Element

Subaru Forester with optional electronic stability control

Large pickup

Toyota Tundra

Hans Poppe

Poppe Law Firm Involved in $900,000 Louisville FELA Verdict Against CSX Railroad

Sorry to be so long in posting, but we were in trial with Hal Bailey of Atlanta Georgia and Will Moody, Jr.  of Virginia, both of Moody, Strople, Kloeppel & Higginbotham, Inc.  A Louisville jury awarded our client, Paul Fairchild, $910,000 in a Federal Employers Liability Act (FELA) case against CSXT Railroad.

In 2003, Paul was operating a ballast regulator when his supervisor stopped a fuel truck across the tracks at the crossing Paul was approaching.  While Paul tried to stop the regulator as quickly as he could, there was too much grease on the rail and Paul and his regulator slid 250 feet into the fuel truck. 

The wreck caused Paul to suffer a severe neck injury that resulted in a two level neck fusion and a permanent impairment that has disabled him.

This Louisville, Kentucky jury took their charge seriously and deliberated almost 8 hours before coming to their verdict.  We believe it is a verdict they should be proud of.

Hans

Automobile and Semi-Truck Accidents Are a Serious Problem in Kentucky

So, I was talking with a non-lawyer friend of mine the other day and he was telling me how lucky we are to live in Louisville--because "we don't have that many car accidents. "
WHAT!!?? 
While I certainly agree we are lucky to live in Louisville, it certainly has nothing to do with the number of car wrecks.  In fact, Kentucky as a whole has statistically more injuries and fatalities involving semi-trucks than other states, probably because of the convergence of I-264 (Watterson Expressway), I-65 (Martin Luther King Highway) and I-64 and I-71, all in Louisville-- this is commonly known around here as Spaghetti Junction.
If you are ever involved in an automobile accident, you should do the following:

• If someone is injured, you should call for help immediately. Provide basic first aid but don't move an injured person unless you have medical training.
  
• Make note of the time of day, any weather factors that may have contributed to the accident, the position of the cars, etc.
• Courteously exchange information with the other parties involved such as names, addresses, phone numbers, driver's license numbers, insurance companies and policy numbers, if possible.
  
• If there were witnesses to the accident, get their names and telephone numbers. If the police are called, make a note of the reporting officer's name.
• Report the accident to your insurance agent or company as soon as possible, even if you were not at fault.
• And, if you were injured, and the accident was not your fault, hire a lawyer.

Download our Free Report on Semi-Wrecks.
Hans

Does Pre-Trial Publicity about the Kentucky Kingdom Case Taint the Jury?

Anyone who lives in or around Louisville, Kentucky has heard about the tragic events that caused catastrophic injuries to a young louisville girl at Kentucky Kingdom.  Recently, a friend of mine asked my opinion about whether there was anything wrong with the publicity the case was receiving and could it have an impact on the fairness of the trial. 

Pre-Trial publicity is governed by rules published by the Supreme Court of Kentucky that govern the conduct of all lawyers practicing in Kentucky.  Specifically, pre-trial publicity is rule SCR 3.130(3.6).  In short, it provides that there should be a balancing act between the public's right to have information about a case and the party's right to a fair and impartial jury.

In conducting the balancing inquiry, a lawyer should not make any statement "if the lawyer knows, or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding."  There are severaly key phrases contained in that statement, including "substantial likelihood"  "materially" and "prejudicing."  While I won't go into a dissertation about the definition of these words, each one has a specific meaning  that must be applied to the statment, and must be done so from a prospective (not retrospective) view.

Also contained in the rule is a large section dealing with public statements that can always be made, even if the statements might have a substantial likelihood of materially prejudicing an adjudicative proceeding, including, but not limited to: 1) the general nature of a claim, 2) information contained in a public record, 3) that an investigation is in process, etc.; however, the exception most applicable to the Kentucky Kingdom case would be #6, "A warning of danger concerning the behavior of a person (or corporation), when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest..."

Here, the statements made by this young girl to the press, and in Washington D.C. at congressional hearings on amusement park safety have been "a warning of danger...of likelihood of subtantial harm to an individual or to the public interest."

Finally, because there hasn't been a trial date set, it would be difficult to argue there has been any likelihood of materially prejudicing  the trial.  Just my two cents.

Hans

To settle or not to settle, that is the question.

According to this recent article in the New York Times, plaintiff who reject settlement offers and roll the dice at trial are statistically likely to get less money than if they had taken the settlement.  According to the article, “The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more,” said Randall L. Kiser, a co-author of the study and principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions.
The study was based on over 2000 trials and it concluded that about 60% of the time the plaintiff (the person bringing the suit) got a worse deal that the settlement offer they rejected .The study, which is to be published in the September issue of the Journal of Empirical Legal Studies, found that plaintiffs typically received about $43,000 less at trial.  And, while defendants typically do better at trial, when they don't the results are far more pronounced.  When a defendant gambles wrong and goes to trial, statistically they end up paying about $1.1 million dollars more.
I found this article to be particularly interesting based on my own (completely non-scientific) observations.  Most medical malpractice insurance policies give the doctor the absolute consent to settle a malpractice suit.  That's not to say the insurance company has to settle the case if the doctor gives consent, but the insurance company usually cannot settle the case until the doctor gives his/her consent.  What this means, is that the healthcare provider is much more willing to take the risk of going to trial if the likely verdict is less than his/her policy limits.  Most medical doctors carry about $1 million dollars in coverage.  If the verdict is likely to be $1 million or less, the doctor has no reason to settle the case because there is not much of a chance the doctor will have to pay any money out of his/her own pocket.  On the other hand, if the exposure to the doctor is significantly more than the $1 million in coverage, the doctor is much more likely to give consent in order to avoid his personal assets being at risk.  
Hans
p.s. Thanks to John Day in Nashville for bringing this article to my attention. 

Hans Interviewed for LawyersUSAOnline on Settlement v. Trial

A while back I was interviewed about a blog post I did on the risks of proceeding to trial versus taking the insurance company's offer.  Here is the interview

New study suggests it pays to settle

By Justin Rebello
Staff writer

Louisville Mother Loses Lawsuit Against Louisville Metro Police

Attorneys Will Driscoll and Davied Friedman recently tried a very interesting wrongful death case in federal court in Louisville, Kentucky against the Metro Police department.  The basic facts of the case are that a young woman was murdered by her boyfriend following several abusive episodes.  A warrant for his arrest was taken out; however, it was never served.   Believe it or not, generally speaking, neither the fire department, EMS, 911, or the police have any affirmative duty to protect or rescue us.  To state it another way, if one of these entities fails to protect or rescue us from another person, they can't be sued.  Here is the Courier-Journal story.
Regardless of the outcome of the suit, it does illustrate a real problem...domestic violence.  It also higlights the flaws in our system.  I congratulate Will and David in their success of bringing this issue to light.
Hans

What Kentucky Residents Injured in Indiana Car Wrecks Need To Know

Today's Courier Journal had an article about a horrible car wreck that occurred in Indiana and injured several Kentucky residents and killed one.  According to the article, two people were killed and five others were injured in a multivehicle crash yesterday on Ind. 111 in Floyd County.  The wreck -- initially a collision of a sport utility vehicle and a minivan -- just before 8:30 a.m. shut down the two-lane highway, the main route to the Horseshoe Casino in Harrison County, for about four hours. Authorities said the road was wet from rain and that likely contributed to the series of collisions.  The two drivers who died were identified as Rosalind Bethea, 45, of Louisville, and Morris "Mo" Weldon Jr. , 46, of Scottsville, Ky.  The injured were taken to University Hospital in Louisville, where they were reported in stable condition.  They were identified as Bocchichio Henegar, 28, Bethea's daughter and a passenger in the SUV; Teresa Collard, 46, of Scottsville, Weldon's passenger; Ruth Clephante, 71, of Wilder, Ky., the driver of the minivan; and her passengers, husband David Clephante, 75, and Bob McCoy, 84, also of Wilder.
 
Even though Kentucky and Indiana share a border, that's about all they share when it comes to personal injury law, especially when it comes to car wrecks.  As a lawyer licensed in both Kentucky and Indiana, I often get frustrated with the Indiana laws.
Here are some of the differences between Indiana law and Kentucky law:
Kentucky has pure comparative fault.  This means that if the jury finds the plaintiff partly at fault for the wreck, the plaintiff can still recover for the fault apportioned to the other driver, even if it's on 1%.  Indiana, has modified comparitive fault, meaning if the plaintiff is 50% or more at fault, the plaintiff recovers nothing.

In Kentucky, if the at fault driver doesn't have enought insurance to compensate the plaintiff for her injuries, the plaintiff can make an claim against her own insurance if she has purchased underinsured motorists coverage.  The plaintiff can recover 100% of the at-fault driver's insurance and up to 100% of their own underinsured coverage.  However, in Indiana, a driver's underinsured coverage is reduced by the amount of liability coverage carried by the at-fault driver.  For example , in Kentucky if the at-fault driver has $100,000 in coverage and the injured person has $200,000 in underinsured coverage available, the injured person has up to $300,000 in coverage available.  In Indiana, you would only have $200,000 in coverage available because the underinsured coverage is set off by $100,000 liability coverage available.
In Kentucky, an injured party can recover 100% of the medical bills.  In Indiana you can only recover for the amount of medical bills that were actually paid.

These are just a couple of differences between Indiana and Kentucky auto accident and injury law.  We hope the victims of this wreck hire a lawyer experienced with Indiana law.

Apple & ATT Might Have Some Big Problems Out in California...

A federal judge has allowed a lawsuit against Apple and AT&T to go forward as a class action.

Women Fight Over Gary Coleman's Estate--Watchu Talkin Bout?

Child-hood actor Gary Coleman died last month.  Most people know/assume Coleman was broke when he died. And perhaps he was.  Coleman was picked up as the sponsor for Cash Call (a questionable loan company), after he called them to get a loan.

But here's what's happening now.  Coleman's original will was written in 1999, about eight years before he married Shannon Price.  Coleman met  Price on the set of the movie "Church Ball." The couple married in 2007 and divorced in 2008, according to Coleman's attorney, Randy Kester. Kester says the two had an on-again, off-again relationship. Price was still living in the marital home when Coleman suffered his fatal fall and asked asked the Utah courts to determine the two had a common law marriage.

Coleman's Utah lawyer probated the 1999 will; however, a second will dated February 2, 2005 was discoverd andwas filed in a Provo, Utah court; the second will names Anna Gray as the executor and beneficiary of his entire estate.  Gray was the CEO of an undisclosed company formed by Coleman several years ago and reportedly lived with Coleman until his marriage to Price.

But not so fast, Price has come forward will a third hand-written 2007will that Price claims leaves his estate solely to her

So, if Coleman was broke, why are two women fighting over who will control his estate?

The simple and morbid truth is that Coleman's identity may be more valuable after his death than while he was alive. 

Shorty after Michael Jackson's passing I wrote about why his earning power would likely increase after his death.  And I was correct.  On March 15, 2010, his estate signed the biggest record deal in history, $250 million.

Every year Forbes Magazine compiles a list of the richest dead celebrities.  Here is the 2009 list:

Who Owns March Madness and the Sweet Sixteen? Hint, Kentucky and Illinois have something to say about it!

Its that time of year again, when everyone's minds turns to March Madness and who's in and whose not. Hans explains some things you may not know about the Big Dance.

Will Advertisers Sue Tiger Woods...

So, everyone is talking about Tiger Woods, his marriage, and his relationships with other women.  But, what very few people seem to be talking about is his lucrative endorsements and whether any of them will drop him, or worse, sue him based on the tarnishment of his image.
As a business litigation attorney, I can't help but think about all of the potential claims  companies may have against Tiger (even Saturday Night Live got in on the joke this weekend).  While some endorsement contratcs may have morals clauses, others may not; however, that doesn't mean they can't still get out of those contracts.  I think a strong argument can be made that Tiger's announcement today that he is taking an "indefinite" leave from the game of golf, coupled with the image problem created by his "infidelity" makes for a strong argument that there has been a material change in the relationship that should justify a novation of the contracts at the very least.  A really smart lawyer (since even this Louisville lawyer can figure this one out) can argue that the sponsors business may actually be damaged by being associated with Tiger and, as a result, they may be entitled to a refund. 

Hans

ps At the time I am writing this, it appears Gillette is backing away from Tiger.

Judge Orders Microsoft to Stop All US Sales of Word

I handle business litigation and disputes in and around Louisville, Kentucky for small businesses--I represent the little guy and I always root for the little guy taking on the big guy.  And here is a case where you can really root for the little guy. 

In a David v Goliath showdown, it appears round one goes to David.  In what has become a very interesting intellectual property dispute, tiny software manufacturer Toronto-based i4i, which has 30 employees, claims that Microsoft violated an obscure patent related to Extensible Markup Language or XML. It's a key software component of many websites and
computer programs, including Word. 
Tuesday, Texas Federal District Court Judge Leonard Davis agreed with i4i and entered an order fining the software giant Microsoft $290 million and ordering them to stop selling Word in the United States.
Judge Davis' ruling came following a jury verdict that found that Microsoft had infringed on i4i's 1998 patent.  The jury awarded $200 million and Judge Leonard Judge Davis ruled that Microsoft should pay i4i an additional $40 million for its willful infringement of the i4i patent. Microsoft also was ordered to pay slightly more than $37 million in prejudgment interest, including an additional $21,102 per day until a final judgment is reached in the case. The court also ordered Microsoft to pay $144,060 per day until the date of final judgment for post-verdict damages.

i4i was represented by the national business litigation firm McKool Smith. 


hans

The Case of the Exorbitantly Expensive Emeralds...

As a Louisville attorney that has handled a number of high dollar breach of contract cases, I followed with interest the highly publicized case of a local Louisville jeweler that was being sued by the Brown-Forman heirs for allegedly selling
According to Jason Riley of the Courier-Journal, "Louisville jeweler Jim Jackson does not have to refund $800,000 to the family of former Brown-Forman Corp. chairman Robinson S. Brown Jr. for a necklace he sold Brown in 2005. 

Was Your Credit Card Information Stolen...

If you live in or around Louisville, Kentucky, you may have noticed a small blurb in the Courier-Journal about a local Jeffersonville, Indiana company called Heartland Payment Systems.  It appeared on inaguration day, so I don't blame you if you missed it; however, it is a BIG STORY.... regardless of how little media attention it received.
Heartland Payment Systems, based in New Jersey, processes 100 million credit card transactions per month in its processing center in Jeffersonville, Indiana.  And therein lies the problem.  Heartland President Robert H.B. Baldwin Jr said the company found evidence last week that their had been an electronic "intrusion" occuring for the last several months.  Baldwin indicated that both credit-card names and numbers were exposed.
ComputerWorld has a detailed article outlining how this data breach, which may be the largest in history by surpassing the TJX case, has sparked concerns in the industry over how to keep information safe and secure.
The Poppe Law Firm is local counsel in the Countrywide data breach litigation currently pending before an MDL in the Western District of Kentucky.  The Poppe Law Firm is also attempting to assist individuals that have received notification that their credit or debit card information was accessed by virtue of the Heartland Payment Systems security breach.  Please feel free to contact our office. 502-895-3400
hans

Louisville Based Yum! Ordered to Pay $42 Million Dollar Verdict over Taco Bell Chihuahua Dog.

"A federal appeals court Friday ruled that Taco Bell is solely liable for $42 million in breach-of-contract awards to two Michigan men who created the diminutive mascot that starred in the Irvine fast-food giant's hit $500-million advertising campaign in the 1990s."  LA Times article here.

The business litigation dispute began in 1998 when Joseph Shields and Thomas Rinks of Grand Rapids, Mich., filed suit against Taco Bell, which is owned by Louisville based Yum! brands, alleging breach of contract.

Shields and Rink were in talks with Taco Bell advertising agents to adapt a Chihuahua for TV spots when, the men claimed in their lawsuit, Taco Bell took the idea to another ad agency, TBWA\Chiat\Day.

In 2003 a Michigan federal jury ordered Taco bell to pay $30 million for breach of contract and the federal judge tacked on nearly $12 million in interest.  This prompted Taco Bell to turn around and sue TBWA claiming the ad company was responsible for using the disputed content.

On Friday, the 9th Circuit Court of Appeals ruled in favor of TBWA by ruling that Taco Bell, and not TBWA, was responsible for the wrongful use of the Chihuahua.

It is unclear at this point whether Taco Bell/Yum! brands will appeal.  Warner Norcross & Judd, LLP, a large Michigan law firm, represented Rinks and Shields. 
Hans
ps. Gidget was the name of the Taco Bell Chihuahua.  The popular ads stopped running in 2000 freeing Gidget for further big- and small-screen fame, with roles in "Legally Blonde 2: Red, White & Blonde" and Geico insurance ads. She also appeared on "The Tonight Show With Jay Leno," during which she was given a choice between a Taco Bell chalupa and Kentucky Fried Chicken.

Countrywide Data Breach Litigation

Last year one of the largest data breaches in history was discovered when a former Countrywide employee was arrested Aug. 1 and charged with illegally accessing the firm’s computers for more than two years.  The information was being sold to mortgage brokers to be used as sales leads, federal authorities said in August. In an attempt to appease its customers, Countrywide offered security monitoring services; however they sent the notifications in what appeared to be junk mail envelopes and many customers probably threw them awasy.  Countrywide also failed to notify its customers that it actually has an ownership interest in the security monitoring company.
The data breach led to multiple lawsuits against Countrywide and related entities in several different states and federal jurisdcitions. 
Eventually, all of the lawsuits were consolidated into an MDL  which was assigned by the head of the MDL litigation panel, Judge John Heyburn,  to the Western District of Kentucky, Judge Thomas Russell.

We are local counsel for several of the out of state law firms.  For more information, please contact us.

Hans

How Some Madoff Investors May Recover Their Losses

“Madoff did not pass due diligence for many European hedge fund companies,” Mr. Indjic said. “Experienced people know there are many ways to provide the kind of return stream offered by Madoff, almost like a bank account, and one of them is a Ponzi scheme.”  Source: NY Times December 16, 2008.

By now, anyone with even passing knowledge of the stock market has shaken their head in disbelief that Bernard Madoff, the former chairman of the NASDAQ, could have pulled off the largest Ponzi scheme of all time.

While many of his private investors will likely never recover anything, some "lucky" investors that invested through a financial institution or mutual fund may be able to seek recovery from the broker dealer or investment house that placed them in the investment.  That's because it appears that anyone doing any "due diligence" would have learned that Madoff's numbers simply didn't add up.  According to the Times,  "In early 2003, as word of Bernard L. Madoff’s apparent Midas touch spread among affluent Europeans and money managers, a team from Société Générale’s investment bank here was sent to New York to perform some routine due diligence.  BNP Paribas has nearly $500 million in exposure to the Madoff firm. Its banking unit posted a $1.4 billion loss on Tuesday. What it found that March was hardly routine: Mr. Madoff’s numbers simply did not add up. Société Générale immediately put Bernard L. Madoff Investment Securities on its internal blacklist, forbidding its investment bank from doing business with him, and also strongly discouraging wealthy clients at its private bank from his investments.The red flags at Mr. Madoff’s firm were so obvious, said one banker with direct knowledge of the case, that Société Générale “didn’t hesitate. It was very strange.”
(earlier this year, Societe Generale lost $7.1 billion due to a rouge employee investing in derivatives.  I majored in finance and still don't understand derivatives...ever hear of the Black Scholes pricing model?  It's more complicated, and about as useful, as Latin.)
Anyway, the investors that bought through a fund or private client group, bank or other financial institution may be able to recover from those instutions for their failure to do the type of investigation that Societe Generale did back in 2003. 
I predict a bumpy ride for Wall Street.

Hans

Why Corporations and Small Businesses Shouldn't Pay Lawyers by the Hour...

I have to admit that in Louisville, I'm probably a rare breed.  I handle business litigation cases on a contingency fee basis (or a hybrid hourly-contingency basis depending on what the client wants).  I am a firm believer in the contingency system because it provides the most incentive for the lawyer to do the best job possible for the client without expending needless resources simply because the lawyer is paid by the hour. 
I recently ran across the following article , expressing much better than I can, several reasons why corporations and small businesses should incorporate contingency fee contracts in their cases, regardless of how large they potential recovery may be.

hans

How Bad Is Duke Football.....

Duke University football is so bad that they can breach a contract to play the University of Louisville and not have to pay damages to Louisville.  How is that?  Well, the contract contained a damage provision that entitled UofL to $150,000 for each of the three games that Duke refused to play following the 2003 season.  That was the Large Print; but the small print said Louisville was only entitled to damages if they could not find a team of equal caliber to replace Duke.  Therein lies the Devil (pardon the pun) in the details.  Duke's lawyers argued that the Blue Devils' performance on the field was so poor that any Division I team would suffice as a replacement. Duke is 6-45 over the past five years, 13-90 since 1999.

Judge Phillip J. Shepherd of the Franklin County (Ky.) Circuit Court agreed, according to the Louisville Courier-Journal.

"At oral argument, Duke [with a candor perhaps more attributable to good legal strategy than to institutional modesty] persuasively asserted that this is a threshold that could not be any lower," Shepherd wrote in a summary judgment issued Thursday, according to the paper. "Duke's argument on this point cannot be reasonably disputed by Louisville."

Thanks to Dean Chen of the University of Louisville School of Law for pointing this interesting legal story out in his blog

Hans

 

Follow Up: Just How Bad is Duke Football

In a follow-up to a blog post I did earlier about the contract dispute between Duke University and the University of Louisville, my friend James Cole sent me the following video link of Duke's attorney.  Here, she explains why Duke should not be forced to pay Louisville for breaching its contract to play Louisville in football.  Enjoy and GO CARDS!

hans

Kentucky Supreme Court Rules in Favor of Poppe Law Firm Client

Yesterday the Supreme Court of Kentucky issued a unanimous opinion in favor of a Poppe Law Firm client in a legal malpractice case.

Hans To Argue Before Kentucky Supreme Court Wednesday.

Hans Poppe will be arguing before the Kentucky Supreme Court on June 9, 2010 in an issue of first impression in Kentucky involving a legal malpractice issue.

Legal Malpractice--How Your Laywer Can Stick it To You Again....

One major issue that arises in many legal malpractice cases is whether the client can recover damages from the lawyer in a legal malpractice case if the damages were not collectible (or questionable) in the underlying case. Here is an example: Mr. Drunk Driver crashes into Mr. Innocent. Mr. Drunk Driver doesn’t have any insurance to pay for Mr. Innocent’s injuries, nor does Mr. Drunk Driver have money or assets. Mr. Innocent finds a TV advertising lawyer that promises to get him a quick settlement and keep him out of court. When Mr. Lawyer learns that Mr. Drunk Driver doesn’t have any insurance, he doesn’t do much to pursue Mr. Innocent’s case. Unfortunately, Mr. Lawyer sits on the case too long and the statute of limitations passes. It’s now too late to file a lawsuit against Mr. Drunk Driver. Mr. Innocent decides to sue Mr. Lawyer for legal malpractice. Mr. Lawyer decides to defend by arguing that Mr. Innocent’s case is worthless because Mr. Drunk Driver was uncollectible. Meaning that if Mr. Innocent couldn’t have collected from Mr. Drunk Driver (because he is poor and uninsured), then Mr. Innocent can’t collect from Mr. Lawyer (because the value of the legal malpractice case is only as good as the underlying case). The Texas Supreme Court recently stirred the pot and weighed in on these issues in AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. v. NATIONAL DEVELOPMENT AND RESEARCH CORPORATION, 2009 WL 3494978, 13 (Tex. 2009). The Texas Court first addresses the issue of recoverability. The specific question in the case was when collectability was to be determined. The malpracticing attorney argues that the determination of whether the damages were collectible should be made at the time the underlying judgment is entered, not at the time the suit is originally filed, as argued by the Plaintiff. The Court agrees with the malpracticing attorney that the determination of whether damages awarded in the underlying suit were actually collectible should be made at the time the judgment is entered. This was a blow to the Plaintiff as the entity from which the fees were to be recovered was in a much worse financial position at the time the judgement was entered than it was when the suit was originally filed. The Court also addresses the issue of the recoverability of attorney’s fees. The Court holds that fees paid to the defendant attorney in the underlying suit are recoverable stating, "We see little difference between damages measured by the amount the malpractice plaintiff would have, but did not, recover and collect in an underlying suit and damages measured by attorney’s fees it paid for representation in the underlying suit, if it was the defendants attorney’s negligence that proximately caused the fees. In both instances, the attorney’s negligence caused identifiable economic harm to the malpractice plaintiff. The better rule, and the rule we adopt, is that a malpractice plaintiff may recover damages for attorney’s fees paid in the underlying case to the extent the fees were proximately caused by the defendant attorney’s negligence." The Akin Court’s ruling on collectability and attorneys fees may have serious implications for Plaintiffs seeking to be made whole. Specifically, the effects of determining the collectability of a judgment at the time the judgment is entered rather than when the suit is filed are case and fact specific but could result in Plaintiffs recovering damages or being left holding the bag. Hans ps. Kentucky, and most other states, have not ruled on the issue of collectibility in the underlyhing case.