Professional Negligence Law Reporter

A Louisiana appellate court held that the collectability of a damages claim does not affect a plaintiff’s potential recovery in a subsequent legal malpractice action against the lawyer who handled the underlying claim.

Elaine Ewing was injured when her vehicle was struck by a vehicle operated by Marc Melancon. She retained Roe attorney to handle a personal injury suit against Melancon. Although Roe fax-filed a damages petition in the case, he failed to forward the original damages petition within seven days. Ewing’s lawsuit was subsequently dismissed as untimely.

Ewing filed suit against Roe and his insurer for legal malpractice, claiming the damages that she might have recovered against Melancon in the underlying lawsuit. The defendants moved for summary judgment, arguing that the plaintiff’s recovery could be no greater than her potential recovery in the underlying lawsuit or Melancon’s insurance policy limits, which totaled $30,000. The trial court granted summary judgment for the defense on the issue of collectability.

Reversing, the appellate court noted that the state high court has ruled that the financial status of a litigant is not a proper consideration in determining compensatory damages. Here, the court said, the plaintiff would have recovered on her underlying claim against Melancon but for Roe’s negligence, and the trial court determined that her damages exceeded $30,000. Although Melancon allegedly would have been unable to pay anything toward a judgment and might, hypothetically, have declared bankruptcy if facing such a judgment, a hypothetical situation should not limit the plaintiff’s recovery, the court held, adding that a judgment against Melancon may have become collectible in the future. The trial court also found that the inability to pay the plaintiff did not relieve Melancon of the obligation to pay her, and that Roe, therefore, has no greater rights in his legal malpractice defense than Melancon would have had in the underlying suit.

Consequently, the court remanded.

Citation: Ewing v. Westport Ins. Corp., 290 So. 3d 707 (La. Ct. App. 2020).

Plaintiff counsel: AAJ members Donald Cazayoux Jr. and J. Lane Ewing Jr., both of Baton Rouge, La.