Opinion
No. CV 05-5001205
July 26, 2007
MEMORANDUM OF DECISION
Plaintiff, Diana DiGiacomo-Canellas, Administratrix sues defendant, Francis A. Miniter and Francis A. Miniter, d/b/a Miniter Associates in multiple counts of legal malpractice, reckless and wanton conduct, breach of contract, violation of Connecticut Unfair Trade Practices Act, negligent misrepresentation, intentional misrepresentation, breach of fiduciary duty, and breach of the covenant of good faith and fair dealings. The plaintiff has only briefed the malpractice count, so all the other counts are deemed abandoned.
The facts are as follows:
Plaintiff, Diana DiGiacomo-Canellas, Administratrix (hereinafter "Diana") contacted Attorney Daniel Spineti to handle a case in which her uncle Guido DiGiacomo was run over by a trailer truck in New York City on September 7, 2000. Attorney Spineti was then employed by defendant, Francis A. Miniter Associates, of which defendant Attorney Francis A. Miniter was principal. (Hereinafter the firm and Francis A. Miniter are referred to as Miniter). The firm had seven attorneys and five or six support staff. Spineti testified that he informed Miniter of the DiGiacomo case when he first started working on it, and it was the custom in the office for associates to discuss the cases they were handling at firm meetings. Spineti sent out letters to the defendant's insurance company on Miniter's letterhead, used the firm's secretary, made phone calls about the case on Miniter's phones, and saw Diana in Miniter's office. However, Spineti never entered into a retainer agreement with Diana because she was his sister-in-law. Also, he did not keep records of time spent on the case.
Neither Spineti nor any person in the Miniter firm initiated an investigation of the case, obtained statements from the witness noted on the police report, took any depositions, and undertook any discovery whatsoever.
When settlement efforts failed, Spineti had another associate in the office draft a complaint in the DiGiacomo matter to be filed in the Federal District Court in New York City. He gave the complaint to Miniter, who was the only lawyer in the firm admitted to practice in that court, and who reviewed the complaint and signed it. The complaint, dated September 3, 2003 stated a cause of action for wrongful death and for personal injuries against defendants Martin Lentz, the driver of the trailer truck involved, and H. Joseph Sauble, the owner of the truck. Miniter also signed the motion for Spineti to be admitted pro hac vice in the Federal District Court.
Shortly after the action was filed, the defendants in the federal case moved to dismiss on the grounds that the action was brought by the estate of DiGiacomo instead of a personal representative of the estate and because the statute of limitations on the wrongful death portion of the action (two years under New York law) had expired. Spineti prepared and Miniter signed an affidavit and memorandum of law in opposition to the motion. Federal District Court Judge Cedarbaum orally dismissed the wrongful death action with prejudice on January 6, 2004 on the basis of the statute of limitations, and filed a memorandum of decision on January 14, 2004 dismissing the personal injury action without prejudice on the basis that it was brought by the estate rather than a personal representative of the estate.
Spineti then applied in Hartford Probate Court for Diana to be appointed Administratrix of Guido DiGiacomo's estate. He prepared and Miniter signed another complaint, dated June 25, 2003, filed in the federal court in New York City for personal injuries suffered by Guido DiGiacomo prior to death.
Spineti, a member of the National Guard, left the Miniter firm in September 2004 to serve in Iraq. Thereafter, plaintiff sought information about the case, and when the Miniter firm started to refuse to answer her calls, Diana retained the law firm of Nicholas T. Kocian. On January 28, 2005, Diana wrote Miniter that she wanted the file forwarded to Kocian, but she was not discharging him from responsibility. Kocian sought to get the file from Miniter and only, after obtaining a probate court order, was the file delivered to him. The plaintiff first learned that the wrongful death action was dismissed when her attorney got the file in May 2005.
Thereafter, plaintiff filed a complaint against Miniter with the Statewide Grievance Committee for missing the statute of limitations, failing to bring the action in the name of the right plaintiff and neglecting to keep her informed of the case. The Grievance Committee rendered a decision reprimanding Miniter for violating several rules of professional conduct, including failure to act with reasonable diligence, to communicate with the client, and to supervise associates.
Plaintiff initiated this lawsuit by a complaint against the defendants on October 4, 2005. Miniter interposed an answer generally denying the allegations of the complaint and interposed the special defense of statute of limitations.
Turning first to that special defense, although defendant relies upon Conn. Gen. Stat. § 52-584, the proper statute for legal malpractice is § 52-577, which provides that a tort claim must be brought within three years from the date of the act or omission complained of.
The statute of limitations may be tolled, however, "when the plaintiff can show: (1) that the defendant continued to represent him with regard to the same underlying matter; and (2) either that the plaintiff did not know of the alleged malpractice or that the attorney could still mitigate the harm allegedly caused by that malpractice during the continued representation period." (Italics as in the original). DeLeo v. Nusbaum, 263 Conn. 588, 597 (2003).
In the instant case, the court finds Miniter continued to represent Diana in the DiGiacomo matter at least until January 2005 and Diana did not learn of Miniter's missing the statute of limitations until May 2005. This action was initiated in October 2005. Consequently, there is no merit to the defense of statute of limitations.
Turning to the merits of the case, the elements of a cause of action for legal malpractice are well settled. As stated in Updike, Kelley Spellacy, P.C. v. Beckett, 269 Conn. 613, 649 (2004), and reiterated with approval in Hartford Casualty Insurance Co. v. Farrish-LeDuc, 275 Conn. 748, 759 (2005):
Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent member of the profession with the result of injury, loss, or damage to the recipient of those services . . . In general, the plaintiff in an attorney malpractice action must establish: (1) the existence of an attorney-client relationship; (2) the attorney's wrongful act or omission; (3) causation; and (4) damages.
In Hartford Casualty Insurance Co., at 759-60 the court went on to say: "`When the underlying action was never tried, the client essentially has a double burden of proof. First the client must show that the attorney was negligent. Second, the client must establish that the underlying claim was recoverable and collectable.' (Citation omitted.) . . . Thus, in order to prove her claim against Levy Droney, the defendant would have been required to establish that Levy Droney's negligent failure to file a timely action against Donegan caused her harm because her otherwise meritorious action against Donegan was time barred."
I. ATTORNEY-CLIENT RELATIONSHIP
Miniter asserts that Spineti was Diana's attorney and no attorney-client relationship was established with his firm. The facts are otherwise. As indicated above, Spineti was an associate of the defendant firm, wrote letters on firm stationery, used firm's secretaries and another firm associate on the matter, and saw Diana in the defendant's office. Moreover, Attorney Miniter knew of the Guido DiGiacomo case in the office, reviewed and signed the complaint filed in the Federal District Court, and reviewed as the memorandum filed in opposition to the motion to dismiss. As stated in 4 R. Mallen J. Smith, Legal Malpractice. (2006 Edition), § 30.9, p. 431, "A principal attorney is responsible for the efficiency and conduct of employed attorneys and office staff."
Plaintiff also presented New York Attorney, Derek Smith as an expert on New York law and the Code of Professional Ethics. Mr. Smith testified, based upon the foregoing facts, that an attorney-client relationship between plaintiff and the defendant existed.
This court agrees and concludes that such a relationship did exist between the plaintiff and the defendant.
II. DEFENDANT'S WRONGFUL ACT OR OMISSION
The wrongful acts or omissions of the defendant was failing to initiate the action within the applicable New York state two-year statute of limitations for wrongful death actions. Plaintiff's expert testified such conduct fell below acceptable professional standards. As he said, "A competent lawyer does not blow the statute." Such testimony is not even needed where there is an obvious and gross want of care and skill. Dixon v. Bromson Reiner, 95 Conn.App. 294, 298 (2006). Here the court can readily conclude that the defendant has failed to "exercise that degree of skill and learning commonly applied and under all the circumstances in the community by the average prudent, reputable member of the profession." Hartford Casualty Insurance Company v. Farrish-LeDuc, supra, at 759.
III. CAUSATION
There are two elements to the issue of causation. The first is whether the lawyer's malpractice proximately caused the loss suffered by the plaintiff. The second is whether the plaintiff suffered any loss at all — that is, whether plaintiff would have prevailed in the underlying action.
As to the causal connection between the attorney's negligence and plaintiff's loss, expert testimony may be required in complicated matters where lack of care and skill would not be clear to a lay person. DiSteffano v. Milardo, 82 Conn.App. 838, 844 (2004); Dixon v. Bromson Reiner, 95 Conn.App. 299-300 (2006). See also 4 Mallen Smith, supra, at § 33-17, p. 1082. In the instant case, the failure of the defendant to bring the underlying cause of action within the applicable statute of limitations clearly is the proximate cause for the dismissal of the case. Thus, the plaintiff established this element of causation.
However, the plaintiff must also establish that the defendant's negligence caused the loss of a valid claim. As stated in Hartford Casualty Ins. Co. v. Farrish-LeDuc, supra, at 759, "`The client must establish that the underlying claim was recoverable and collectible [.]'" and that it was "meritorious" The court referred to the authoritative treatise 4 R. Mallen J. Smith, Legal Malpractice. In the 2006 edition § 30.17, p. 482, it states "Where the error concerns the handling of a legal malpractice action, the client must show both the legal malpractice and the underlying action would have succeeded."
Mallen J. Smith speaks of a "trial within a trial" and states (§ 33.9, p. 1016-17), "For example, if an attorney fails to file or to pursue a lawsuit, as where it was barred by the statute of limitations . . . the plaintiff would be required to recreate, i.e. litigate an action that was never tried.
"This is the accepted and traditional means of resolving the issue involved in the underlying proceeding in a legal malpractice action. This approach avoids speculation by requiring the plaintiff to bear the burden of producing evidence that would have been required in the underlying action."
It further states that the standard of proof to be applied to the underlying action in the malpractice case is a fair preponderance of the evidence (§ 33.11, p. 1045).
As to the underlying DiGiacomo action, plaintiff at the trial of this malpractice action presented no testimony by the witness identified in the police report, by the defendant driver of the trailer truck, or by the policeman who investigated the accident. The plaintiff's attorney had the file since May 2005 and there was no indication that he attempted to obtain such testimony before trial.
The driver, Martin Lentz, according to Miniter, died some time in 2006. That was still at least seven months after plaintiff's attorney obtained the file in May 2005.
The sole account of the accident offered was the police report which contained the following description:
Vehicle #1 was traveling eastbound and in the left lane of West 42nd St. and when said vehicle approached 8th Ave. vehicle #1 stopped for a steady red light behind a yellow cab. When the traffic control turned to green the taxi proceeded forward and the truck driver also proceeded forward after looking to his left and right. As he moved approximately one-half of a car length the driver felt a bump. As the driver felt the bump a person came up to the truck and informed the driver to stop cause he struck someone. The driver stopped and got out of his cab and saw the pedestrian under the left side of his truck by the rear dual tires. According to an independent witness who was identified or remained on the scene, the pedestrian was crossing from south to north just west of the marked crosswalk.
The first question is whether the report is admissible in evidence. It is well established that any business record may be admitted if it was made "in the regular course of any business, and that it was the regular course of business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter." Connecticut Code of Ethics, Section 8.4(a). In the instant case, no such evidence was presented. However, the report was contained in defendant's case file and that entire file was admitted into evidence without defendant's objection. As a consequence, the report is properly before the court.
However, the policeman's description of the accident is not based on his own observation, but on statements made to him by the driver. Statements by the witnesses and the parties made and reported to the policeman are not admissible under New York law. As stated in Matter of Roades, 203 A.D.2d 46 (App.Div. 1st. Dept. 1994), 609 N.Y.S.2d 612, "A policeman filing an accident report may be under a duty to record the information, but equally important, the informant must also be duty bound to supply that information (citation omitted). If the policeman recording the information was not himself a witness, then the report should only be admissible if the informant who was under a business duty to relate the facts, absent any other exception to the hearsay rule (citations omitted). Even a party to an action is under no such obligation (citation omitted)."
The policeman's handwritten description of the accident in the report is as follows:
At TIPIO Driver (1) states he was stopped Fr/B [sic] at the intersection of W42st 8 Ave, when he was stopped at a red light. When the light turned green, the cab in front of driver (1) went and driver (1) went forward and that is when he heard a thump. He looked down and saw a pedestrian under his truck.
A signed statement by Martin Lentz, the driver, would be admitted as an admission by a party in the New York action. But here his statement is to the policeman and so double hearsay and not admissible.
But even assuming everything in the report, did the plaintiff prove "a meritorious" case? Plaintiff's expert testified that New York has a law of comparative negligence to the effect that even a proof of one percent negligence by the driver could result in plaintiff recovering. The expert was then asked his opinion as to whether the plaintiff would succeed in the New York case. Defendant objected and the court reserved decision on the objection. It allowed the expert to testify, however, so there would be a record of his testimony if the court allowed it. He then testified that in his opinion, based on the police report, there was a likelihood that the plaintiff would recover and would establish the defendant driver was 20% at fault.
The general rule is not to allow expert testimony on the probability of plaintiff recovering in the underlying case in a malpractice action. As stated in 4 R. Mallen J. Smith, supra, at § 33.17, p. 1082, "Usually expert testimony is not proper to establish what the result [in the underlying case] would have been since that does not involve the expertise of a lawyer witness." The treatise goes on to say at § 33.18, p. 1111:
Another area of expert testimony arises from the desire of a party to avoid the expense of multiple trials. Then expert testimony is offered to prove what the ultimate result should have been and the amount of the client's damages.
. . .
Usually the courts have refused or have been reluctant to admit such testimony . . . A primary rationale is that the trial-within-a-trial provides the objective mechanism for resolving the underlying case . . . A so-called "battle of experts" and the risk of jury confusion are basic problems.
A further rationale against allowing such evidence is that the trier of fact, even a lay jury, would have the ability to resolve the issue in the underlying case without the need for a lawyer expert witness.
Moreover, the Connecticut Code of Evidence at Section 7-3(a) provides:
Testimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, . . .
The Connecticut Appellate Court in Deegan v. Simmons, 100 Conn.App. 524, 535 (2007), commented on that section of the Connecticut Code of Evidence as follows:
As the commentary to Section 7-3 indicates, the rule adopts the common-law bar against admission of a witnesses' opinion on an ultimate issue on a case. (Citation omitted.) An ultimate issue is "one that cannot reasonably be separated from the essence of the matter to be decided [by the trier of fact]."
Here, the probability of success of the underlying case in the New York court is an ultimate issue. Based on these authorities, the court sustains the objection to the expert testimony.
The court does not mean to imply, however, that expert testimony as to the outcome of the underlying case must always be prohibited. It is conceivable that in a complicated case it may be helpful. In fact, in Delco v. Nusbaum, supra, the court seemed to approve a lawyer testifying that but for the defendant-attorney's negligence, the plaintiff might have been granted visitation of children in the child custody component of a dissolution action. But in the instant case where all the facts of the accident are described in the police report, expert testimony is inappropriate. This court can directly decide the merits of the underlying case.
Moreover, even if the court were to allow such opinion testimony, it would be subject to the test of credibility and the court finds it not credible.
The police report indicates that after the light changed, the cab started, and the truck driver "also proceeded forward after looking to his left and right. As he moved approximately one half of a car length, the driver felt a bump . . . The driver stopped and got out of his cab and saw a pedestrian under the left side of his truck by the rear two tires."
There is no evidence that the truck moved any way but straight ahead and the pedestrian was found under the left rear tires. An inference from these facts that the driver was negligent is no stronger than that Guido DiGiacomo walked into the truck or slipped under it. Plaintiff has the burden of proof on the issue. The court concludes from all of the evidence submitted with respect to the accident and even taking into account the plaintiff's expert's testimony, that the plaintiff has not proven by a fair preponderance of the evidence that she would have prevailed in the New York case.
As a consequence, because the plaintiff has failed to prove an essential element of her malpractice action, judgment must enter for the defendant.