Attorney Malpractice Claim Requires Proving Case Within a Case

Torts—Attorney Malpractice—Equitable Estoppel

Beynon v. Trezza, 554 Ariz. Adv. Rep. 15 (App. Div. II, April 13, 2009)(Justice Plelander)

ATTY MALPRACTICE DEFENDANT WINS EVEN WHERE ATTY MISSES SOL WHERE PLAINTIFF WOULD NOT HAVE PREVAILED IN UNDERLYING CASE

It is undisputed that defendant attorney failed to bring suit on behalf of his clients the plaintiffs in this action within the one year statute of limitations (ARS 12-821) for actions against the state. Nonetheless the trial court dismissed plaintiffs' claim on summary judgment because of their failure to file an appropriate notice of claim within 180 days and before hiring the defendant. The Court of Appeals affirms.

After being injured in an automobile accident allegedly caused by a state employee the plaintiff Daniel Boyan completed a form notice of claim with the assistance of an adjuster for the state risk management and later another notice of claim with the assistance of his chiropractor. Daniel's wife was not named on either notice and the only facts given were the dollar amounts of $10,000 and $50,000 respectively and “[the state employee] did a u[-]turn in front of me. She was talking on her phone & looking at maps[, w]hich caused me to collide [sic] with her.” Ten months later defendant attorney was hired who failed to file suit within the one year statute.

The Court of Appeals first pointed out that a plaintiff in a legal malpractice case must prove the “case within a case,” i.e., he would have prevailed in the underlying case against the state but for the attorney's negligence. If as a matter of law the plaintiff could not have prevailed, summary judgment for the defendant in the malpractice action is appropriate.

Here, because plaintiffs' notices of claim “provid[ed] absolutely no facts supporting the amount demanded” and was not properly served on the attorney general it was fatally deficient and summary judgment for the defendant was appropriate.

Finally, the plaintiffs argued the state was equitably stopped to deny the claim on the basis of the deficient notice of claim because the adjuster assisted in the preparation of the first notice of claim and later took the position in writing that the only reason plaintiffs' claims were being denied was the failure to sue within the one year statute. Despite this the court found that “the government ordinarily is neither estopped by the casual acts, advice, or instructions issued by nonsupervisory employees nor stopped 'from correcting a mistake of law.” Here the court found the adjuster to be just such a nonsupervisory employee and found that this employee never “formally” took actions to support an estoppel claim in any event.