Three federal court decisions held that the insurer is in privity of contract with the attorney hired to represent insureds or is a third-party beneficiary of the relationship between the attorney and the insured. See Hartford Ins. Co. of the Midwest v. Koeppel, 629 F. Supp. 2d 1293 (M.D. Fla. 2009); Nova Cas. Co. v. Santa Lucia, 2010 WL 3942875 (M.D. Fla. 2010) and U.S. Specialty Ins. Co. v. Burd, 833 F. Supp. 2d 1348 (M.D. Fla. 2011). The Arch Creek court correctly pointed out that these federal cases were merely persuasive authority and went on to state that they were “distinguishable”.
Abate until the underlying case is resolved
Kasowitz Benson Torres LLP v. Mariano, 279 So. 3d 181 (Fla. 4th DCA 2019)
Plaintiff Steven Mariano and his company are being sued in a federal court case in New York resulting from the sale of shares to certain hedge fund investors. Simpson Thacher & Bartlett LLP represented Mariano and his company in connection with the transaction. Kasowitz Benson Torres LLP briefly represented Mariano and his company in the New York litigation. In 2017, Mariano sued Simpson and Kasowitz for legal malpractice in Broward County, Florida. Both firms moved to stay or abate the action arguing that Mariano’s claims were premature because the underlying New York litigation was still ongoing. Read More ⇾
Unliquidated damages require jury trial
Yanofsky v. Isaacs, 277 So. 3d 132 (Fla. 4th DCA 2019)
Attorney Stuart Yanofsky was sued by his former client Andrew Isaacs resulting from alleged malpractice in a dissolution of marriage matter. Mr. Yanofsky represented himself in the appeal and it appears in the trial court proceeding as well. Yanofsky’s pleadings were struck after failing to respond to discovery requests and Yanofsky moved for summary judgment as to both liability and damages. The court reserved ruling and ordered Yanofsky to file a response to the summary judgment in fourteen days. He did not. Isaacs then moved for sanctions and sought a judgment in his favor. Read More ⇾
If the cause of action accrual date is not in the complaint, you cannot obtain a dismissal based on statute of limitations
Enlow v. E.C. Scott Wright, P.A., 274 So. 3d 1192 (Fla. 5th DCA 2019)
The decision does not describe the facts of the malpractice case. The amended complaint was dismissed with prejudice on statute of limitations grounds. This decision was reversed because the accrual date of the legal malpractice case was outside the four corners of the complaint. The date of accrual was not included in the complaint, its attachments or incorporated by reference. Here, the accrual date was included in a document attached to the motion to dismiss. Relying upon data outside the four corners of the complaint to establish the statute of limitations was improper resulting in reversal. Read More ⇾
Chutzpah is a Yiddish term which is defined as personal confidence or courage that allows someone to do or say things that may seem shocking to others. This term came to mind recently when a lawyer in Tampa, who actively advertises for Plaintiff’s legal malpractice cases, called me with a “legal malpractice question”. I often respond to questions from legal malpractice defense lawyers who seek out my assistance. These inquires typically involve areas of Florida law to which there are no answers and I find the exchange intellectually stimulating. It is also always interesting to see how the dark side is thinking and, yes, my ego is massaged by the phone call. However, I never assist competitors without compensation.
When I did not respond to the competitor’s phone call, I thought that would end the matter. Silly me. In a display of “chutzpah”, the lawyer, or more likely, one of his assistants, contacted me with an inquiry through Martindale Hubbell. He posted a question which had been asked by a trial court judge during trial. I did not respond.
What I wanted to say was buy my book ,Florida Legal Malpractice and Attorney Ethics, it has all the answers.
It happens about a dozen times a year, the most recent occasion was about a week ago. I received a phone call from a young lawyer inexperienced in suing lawyers who was tasked with hiring a legal malpractice “expert” for a legal malpractice case her midsized local firm was involved in. The partner in charge of the file told her to go find an “expert”. When I asked her what the case involved, she told me it involved a foreclosure case. When I tried to tell her that she needed an “expert” in foreclosure litigation, she sternly asked me why I could not help her because she perceived me to be an “expert” in legal malpractice. Rather than educate her, I simply told I would be unable to help her. Without hesitation, she asked if I knew anybody that could. I said I did not. For the sake of her client, like the blind chicken who picks up kernels now and again, I am hopeful she found the right “expert”.
Of course, in a legal malpractice case, the “expert” you need is one who has knowledge in the underlying substantive area, whatever that might be.
What is Legal Malpractice?
Do you know what constitutes legal malpractice?
Legal malpractice is when an attorney falls below the standard of care required of attorneys in a similar situation. Simply stated, it is when an attorney fails to do something he should have done or does something incorrectly. For example, if you hire an attorney and that attorney fails to file your lawsuit within the time period in which such lawsuit must be filed, then that lawyer has committed legal malpractice.
If you have suffered as a result of your attorney’s wrongdoing, contact my firm to arrange a time when we can discuss your case.