Opinion
CV106011684S.
10-31-2012
Jeffrey ZUIEWSKI v. Enrico VACCARO, Esq.
UNPUBLISHED OPINION
BELLIS, J.
FACTS
The plaintiff, Jeffrey Zuiewski, commenced this legal malpractice action by service of process on the defendant, Enrico Vaccaro, Esq., on July 26, 2010. This action arises from the defendant's alleged mishandling of a potential legal malpractice action against Paul Ganim, Esq.
In his one-count complaint, the plaintiff alleges the following. In 2001, the plaintiff became permanently disabled as a result of back injuries and complications from back surgery. Through his employer, the plaintiff received short- and long-term disability through Metropolitan Life Insurance Company (MetLife). On September 29, 2003, MetLife wrote to the plaintiff and informed him that his long-term disability benefits would be terminated, effective November 11, 2003, citing insufficient evidence of a disability that would qualify him for permanent benefits under the policy. The letter informed the plaintiff that he had 180 days to appeal the decision and to submit any additional comments, documents, records or other supporting information.
According to the complaint, on December 8, 2003, Paul Ganim, an attorney retained by the plaintiff, wrote to MetLife stating that he represented the plaintiff in his appeal of the termination of long-term disability benefits. Ganim, on behalf of the plaintiff, objected to the termination, but did not provide any documents or other evidence. On December 30, 2003, MetLife informed Ganim that it had received his appeal letter and that it would make a determination within forty-five days. On January 26, 2004, MetLife informed Ganim that it had upheld its original determination based on insufficient evidence of a qualifying disability. On March 28, 2004, the 180-day appeal period expired.
The complaint further alleges that Ganim requested a report from the plaintiff's primary care doctor on April 12, 2004 addressing the issue of whether the plaintiff suffered from conditions that would qualify him for long-term disability under his policy. The plaintiff's primary care provider sent Ganim a letter, stating that the plaintiff had severe lumbar disease and other conditions, two lumbar laminectomy surgeries in 1989 and 2001, and a permanent disability; Ganim forwarded the letter to MetLife. On July 30, 2004, the plaintiff was also examined by his treating neurosurgeon, who wrote to Ganim opining, among other things, that the plaintiff remained totally disabled. Nevertheless, MetLife indicated that no further appeals would be considered.
According to the complaint, on June 11, 2004, Attorney Ganim wrote to the plaintiff informing him of MetLife's decision to uphold its original determination, and recommending that he file a lawsuit. In July of 2004, Ganim filed a lawsuit against MetLife in Superior Court, which was removed to the United States District Court for the District of Connecticut shortly thereafter. The plaintiff alleges that MetLife moved to dismiss many of the plaintiff's claims and that on February 1, 2005, Ganim filed a voluntary dismissal of the claim against MetLife without the plaintiff's knowledge. On September 14, 2005, Ganim informed the plaintiff that he was transferring the case to Noah Schlafer, an attorney Ganim had previously hired to work on parts of the case. Ganim performed no more work on the case after that date. By September 22, 2005, Schlafer had agreed to take over the case and on September 25, 2005, the plaintiff and Schlafer entered into a written representation agreement. On November 10, 2005, Schlafer filed a second complaint in federal court also alleging a wrongful denial of long-term disability benefits, which was eventually settled for a nominal sum.
In his memorandum, the plaintiff indicated that the amount of the settlement has been disclosed to the defendant.
The plaintiff claims that in March of 2008, he contacted the defendant to represent him in connection with a legal malpractice claim against Ganim based on his previous representation of the plaintiff. The defendant informed the plaintiff that he routinely represents plaintiffs in legal malpractice matters and was qualified to investigate and prosecute the plaintiff's claim against Ganim. The defendant received the original file materials regarding Ganim's representation and interviewed the plaintiff to obtain information about the circumstances of the representation. He indicated to the plaintiff that he would review the file materials and let him know whether he would pursue a legal malpractice claim against Ganim.
The complaint further alleges that beginning in June of 2008, the plaintiff called the defendant on numerous occasions and left messages inquiring about the status of his case, without a response. The plaintiff visited the defendant's office in June or July of 2008 and asked the defendant to contact him, which he allegedly never did. The plaintiff returned to the office again in June or July of 2008, at which time the defendant informed him that he was busy with another matter and that he would be back in touch with the plaintiff. In late August or September 2008, he began calling the defendant to request the return of his file so that the matter could be reviewed by another attorney. The plaintiff also visited the office several times during the first two weeks of September 2008 attempting to obtain his files, to no avail. On September 17, 2008, the defendant received an authorization to transfer the files to a successor attorney, which was done on October 10, 2008.
According to the complaint, on November 5, 2008, the plaintiff, through his new counsel, filed a lawsuit against Ganim alleging negligence for Ganim's representation of the plaintiff. Ganim moved for summary judgment based on the three-year statute of limitations for tort claims, General Statutes § 52-577. On January 27, 2010, the plaintiff settled the case against Ganim for a nominal sum before the motion for summary judgment was decided.
The amount of the settlement is not disclosed in the parties' briefs or exhibits.
The defendant filed the present motion for summary judgment on July 24, 2012 on the grounds that there are no genuine issues of material fact with respect to causation and that the plaintiff's damages are too speculative to permit recovery. He has submitted a memorandum in support of his motion, along with various exhibits. On August 20, 2012, the plaintiff filed an objection and supporting memorandum along with his signed, sworn affidavit and various other exhibits. The matter was heard at short calendar on August 27, 2012.
" Under Connecticut law, before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be ... New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). Despite this rule, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006)." (Internal quotation marks omitted.) Clukey v. Sweeney, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 06 5001731 (December 30, 2009, Bellis, J.). Neither party has objected to any of the evidence submitted by the other. In fact, the parties mostly rely on the same evidence. Accordingly, the court will consider all of the evidence submitted including any evidence that has not been unauthenticated.
DISCUSSION
I
SUMMARY JUDGMENT STANDARD
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). " Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). " In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).
" The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008). " ‘ Issue of fact’ encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969).
The defendant argues that there is no genuine issue of material fact and he is entitled to judgment as a matter of law because the plaintiff cannot possibly prove causation and damages without " resorting to multiple layers of speculation." Specifically, he argues that first having to determine whether Ganim committed malpractice and consequently should have obtained a higher settlement or judgment from MetLife and then whether the defendant himself committed malpractice and consequently should have obtained a larger settlement or judgment from Ganim would require impermissible speculation based on purely conjectural assertions. The defendant further asserts that it is impossible without speculation to prove " but for" Ganim and the defendant's negligence, the plaintiff would have received more in damages.
In response, the plaintiff counters that there are genuine issues of material fact ill suited for resolution on a motion for summary judgment. The plaintiff maintains that in legal malpractice actions, the nature of the " case-within-a-case" assessment necessitates that a plaintiff must present evidence of what would have happened in the underlying case had the defendant not been negligent in order to determine whether there is a compensable injury. Lastly, the plaintiff argues that the cases on which the defendant relies related to the speculativeness of damages are distinguishable from the present case.
The court will treat the defendant's assertion that the plaintiff cannot prove that he was damaged by the defendant's alleged malpractice as a challenge to causation; that is, whether the defendant's alleged malpractice caused a legally compensable injury, in some amount, to the plaintiff. The court will treat the defendant's assertion that the plaintiff's alleged damages are entirely speculative as challenging whether the measure of the injury can be proven with reasonable certainty.
II
CAUSATION
Proximate causation is a necessary element of the malpractice cause of action. Lee v. Harlow, Adams & Friedman, P.C., 116 Conn.App. 289, 303, 975 A.2d 715 (2009). " [A] plaintiff must prove that ... the client sustained legal injury or damage that proximately was caused by the attorney's wrongful act or omission." Id., at 302. " Although the issue of causation generally is a question reserved for the trier of fact ... the issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion, and summary judgment may be granted based on a failure to establish causation." (Internal quotation marks omitted .) Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997).
" In legal malpractice actions, the plaintiff typically proves that the defendant attorney's professional negligence caused injury to the plaintiff by presenting evidence of what would have happened in the underlying action had the defendant not been negligent. This traditional method of presenting the merits of the underlying action is often called the ‘ case-within-a-case.’ 5 R. Mallen & J. Smith, Legal Malpractice (5th Ed.2000) § 33.8, pp. 69-70." Margolin v. Kleban & Samor, P.C., 275 Conn. 765, 775 n. 9, 882 A.2d 653 (2005).
The first issue with respect to causation is whether there is a genuine issue of material fact as to whether Ganim's alleged malpractice caused the plaintiff a legally compensable injury. The following facts are undisputed. The plaintiff's long-term disability benefits were terminated on November 11, 2003, and he hired Ganim to appeal the termination of those benefits. Ganim obtained evidence of the plaintiff's medical condition and prognosis from two doctors after the 180-day appeal period had elapsed on March 28, 2004. Despite the medical evidence submitted by Ganim, MetLife upheld its original decision and did not review the appeal again. Ganim then brought a suit against MetLife in state court, which was subsequently removed to federal court and dismissed. On September 14, 2005, Ganim informed the plaintiff that since he does not handle federal court cases, he was transferring the case to Schlafer, who then brought a second suit in federal court which eventually settled for a nominal sum.
In opposition to the defendant's motion for summary judgment, the plaintiff has submitted copies of the doctors' letters addressing whether he qualifies under MetLife's long-term disability coverage. He has also submitted a copy of the original letter from MetLife stating that his long-term disability benefits would be terminated unless he provided evidence of one or more of several named medical conditions, including " Seropositive Arthritis" and " Radiculopathies." The letter from the plaintiff's primary care doctor indicates that arthritis and radiculopathy were among the conditions from which the plaintiff suffered, and the letter from the neurologist indicates that he suffered from chronic radiculopathy. The plaintiff's affidavit and attached benefit calculation indicates that had he qualified for long-term disability he would have been paid $84,065.24 in past due benefits and $128,014 .92 in future benefits until he reached the age of sixty-five.
Given the above evidence and undisputed facts viewed in a light most favorable to the plaintiff, there is a genuine issue of material fact as to the plaintiff's medical condition and whether he was erroneously denied his long-term disability benefits as a result of Ganim's untimely submission of the medical evidence. It is not disputed that the plaintiff has been denied long-term disability, and a fair and reasonable person could conclude that the denial was caused by the failure to submit updated medical records within the time allotted showing that he would have qualified under the policy. The dispute centers on whether to characterize Ganim's actions as malpractice and whether that malpractice caused the plaintiff harm, which are in this case, like in the majority of cases, questions of fact to be resolved at trial. The defendant has not met his burden of showing that there is no genuine issue of material fact or that it is quite clear what the truth is.
The next issue with respect to causation is whether there is a genuine issue of material fact as to whether the defendant injured the plaintiff by not recovering from Ganim what Ganim allegedly should have recovered from MetLife. The parties agree that Ganim ceased to represent the plaintiff in the federal lawsuit against MetLife sometime in September 2005. The parties also agree that the defendant first met with the plaintiff in March of 2008, at which time the plaintiff provided the defendant with the relevant documents. This gave the defendant from March of 2008 until sometime in September 2008, when Ganim was authorized to transfer the case to Schlafer, to review the case and file a lawsuit against Ganim or refer the case to another attorney in time to avoid any possible statute of limitations issues.
With the facts viewed in a light most favorable to the plaintiff, the defendant could have injured the plaintiff by not filing an action within the three-year statute of limitations. The defendant has not submitted evidence showing that there is no genuine issue of material fact or that it is quite clear what the truth is. A fair and reasonable person could conclude that had the defendant filed a timely lawsuit, the plaintiff could have recovered more than a nominal settlement from Ganim. Thus, a genuine issue of material fact remains with respect to whether the defendant's actions caused the plaintiff a legally compensable injury.
The next issue is whether the settlement of the two underlying actions against MetLife and Ganim make it impossible to show causation. In contrast to the defendant's assertion, however, settlement does not necessarily foreclose the possibility of showing a causal link between the alleged negligence and the loss incurred by the settlement. See Walsh v. Lynch, Superior Court, judicial district of New London, Docket No. CV 11 6010042 (May 3, 2012, Martin, J.) [ 53 Conn. L. Rptr. 914] (in analyzing motion to disqualify, court found causation in malpractice action is not precluded by settlement of underlying action if there is testimony as to strength of plaintiff's case and reasons why decision to settle was made). Otherwise, the victim of alleged malpractice would be completely precluded from ever settling any underlying claim. A lawyer could contend that the client unreasonably refused a fair settlement offer which would have mitigated the client's damages, particularly if the judgment was adverse to the client. Evidence from the plaintiff establishing that the settlement was made to mitigate the damages caused by the defendant is sufficient. See Walsh v. Lynch, supra, Superior Court, Docket No. CV 11 6010042. Moreover, " the law favors settlements, which conserve scarce judicial resources and minimize the parties' transaction costs ..." Blake v. Levy, 191 Conn. 257, 264, 464 A.2d 52 (1983).
The court could not locate any Connecticut cases that specifically analyze the issue of whether settlement of an underlying case makes it impossible to show causation in this context, but the court finds that the present case is similar to a case heard by the Court of Appeals of Texas, Vanasek v. Underkofler, 50 S.W.3d 1 (1999 Tex.App.), rev'd on other grounds, 53 S.W.3d 343 (Tex.2001). There, the plaintiff sued his former lawyer for alleged malpractice arising from the lawyer's prior representation of the plaintiff in relation to recovery on a note against the maker, a limited partnership, and against its partners as guarantors. In the underlying suit, a bench trial began on June 6, 1991, and on that same day the trial court ordered the parties to mediation, which was ultimately unsuccessful. The plaintiff began to have concerns about the defendant's representation and after the plaintiff sent a letter to a partner at the defendant's law firm, the defendant withdrew and the plaintiff hired another attorney to represent him in the lawsuit to recover the note. After an almost three-year recess, trial resumed on April 29, 1994. The plaintiff eventually settled with some of the defendants, and the trial court finally rendered judgment on the settlement agreement and against the several remaining defendants, who did not appear for trial. The plaintiff claimed in his malpractice suit that the defendant mishandled the suit on the note by inadequately preparing for trial, failing to obtain and proffer the proper evidence, failing to join all the guarantors of the note, agreeing to the trial recess and submitting the case to mediation without the plaintiff's knowledge or consent. He also alleged that the delay in the underlying suit allowed two of the defendants to file for bankruptcy and avoid payment on the note.
The defendant moved for summary judgment claiming that the plaintiff could not prove causation as a matter of law. He claimed that because the plaintiff voluntarily settled the underlying case that the defendant could not be the proximate cause of any damages. The trial court granted the defendant's motion for summary judgment, but the appellate court reversed because there was evidence that the defendant's malpractice effectively forced the plaintiff to mitigate his damages by settling the underlying suit. The court also rejected the defendant's argument that new counsel could have, as a matter of law, remedied any of the alleged malpractice because there was evidence that at least some of the deficiencies, such as failure to properly conduct discovery, could not be remedied. The Supreme Court of Texas also noted, in upholding the ruling of the appellate court on this issue, that part of the plaintiff's malpractice claim was that the delay occasioned by the adjournment of the trial permitted two defendants to file for bankruptcy, which contributed to his agreeing to a less favorable settlement. Therefore, because there was evidence from which the jury could find causation, the defendant was not entitled to judgment as a matter of law.
The plaintiff in the present case, in his affidavit, indicates that both of the settlements were for a nominal amount more closely reflecting the defense costs of litigation than compensation for the merits of the claims against MetLife and Ganim, which he claims would be over $200,000 including both past and future benefits. The affidavit also indicates that the settlement with MetLife was due to Ganim missing the 180-day appeal window, while the settlement with Ganim was based on the three-year statute of limitations. Here, as in Vanasek v. Underkofler, supra, 50 S.W.3d at 1, it is evident that there is a genuine issue of material fact as to whether failing to seasonably pursue the plaintiff's claim caused the plaintiff damages. Thus, because there is evidence that the settlements did not reflect the value of a timely disability appeal or subsequent legal malpractice lawsuit, an issue of fact remains as to whether the plaintiff could have recovered more than the settlements absent attorney malpractice.
Accordingly, there are genuine issues of material fact with respect to whether the defendant's actions caused the plaintiff harm and the defendant is therefore not entitled to summary judgment on that ground.
III
DAMAGES
The issue remaining is whether the evidence before the court is sufficient to ascertain damages with reasonable certainty.
The damages in a legal malpractice action are the actual amount that a plaintiff would have recovered in the underlying action if malpractice had not occurred. Hartford Casualty Inc. Co. v. Farrish-LeDuc, 275 Conn. 748, 760, 882 A.2d 44 (2005). As to the certainty required in proving damages, " [i]t is axiomatic that the burden of proving damages is on the party claiming them ... When damages are claimed they are an essential element of the plaintiff's proof and must be proved with reasonable certainty ... Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty." (Internal quotation marks omitted.) American Diamond Exchange, Inc. v. Alpert, 302 Conn. 494, 510, 28 A.3d 976 (2011). The Supreme Court has noted that " there are circumstances in which proof of damages may be difficult and that such difficulty is, in itself, an insufficient reason for refusing an award once the right to damages has been established ... Nevertheless, the court must have evidence by which it can calculate the damages, which is not merely subjective or speculative ... but which allows for some objective ascertainment of the amount ... This certainly does not mean that mathematical exactitude is a precondition to an award of damages, but [Connecticut does] require that the evidence, with such certainty as the nature of the particular case may permit, lay a foundation [that] will enable the trier to make a fair and reasonable estimate." (Internal quotation marks omitted.) Id., at 510-11.
Vanasek v. Underkofler, supra, 50 S.W.3d at 1, is helpful regarding the issue of damages. There, in addition to challenging causation on summary judgment, the defendant challenged the plaintiff's damages by arguing that they were too speculative as a matter of law. The Court of Appeals of Texas found that although it may be difficult to prove at trial that the plaintiff was damaged by the malpractice, there was evidence that the plaintiff could present at trial that would permit a reasonable finder of fact to rule in the plaintiff's favor by estimating the amount of damages that he could have recovered absent malpractice and comparing it to what he actually recovered from the defendants in the underlying case. Mere uncertainty as to the amount of damages, as opposed to lack of evidence or uncertainty as to whether there were any damages at all, would be no bar to recovery. Any uncertainty arising from the settlement of any underlying causes of action similarly did not bar recovery.
Furthermore, Mallen and Smith's Legal Malpractice treatise, cited by the plaintiff, is instructive. " In a legal malpractice action, a court may be tempted to characterize the plaintiff's damage claim as speculative because of the difficulty in liquidating the claim. This is because legal malpractice litigation often involves hypothetical questions which have real consequences. For example, how much did the client lose when the lawsuit was not prosecuted? ... Often, no one can say precisely what the plaintiff lost or should have lost, but difficulty or imprecision in calculating damages does not exculpate the attorney ... Otherwise, attorneys could avoid liability merely because damages are difficult to measure. The beneficiaries would tend to be those attorneys whose errors were the greatest and whose conduct succeeded in complicating the issue of calculating the extent of the client's injury." 3 R. Mallen & J. Smith, Legal Malpractice (2012 Ed.) § 21.3, pp. 12-13.
The defendant cites several cases in support of his proposition that damages are not reasonably ascertainable in the present case. In Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 889 A.2d 785 (2006), the plaintiff alleged that the defendants fraudulently induced it to sell its share of a partnership interest by omitting information which would have allowed the plaintiff to make a fully informed decision about whether to sell such interest. The plaintiff alleged that the defendants did not disclose that they were engaged in negotiations with a third party over a deal that, if completed, would have increased the value of the plaintiff's partnership share. The plaintiff claimed damages based upon the diminution in value of its interest caused by the defendants' alleged nondisclosure. The Supreme Court held that the inquiry would be too speculative because at the time that the plaintiff sold its interest to the defendants, the valuation was subject to two contingencies: first, that an agreement would be reached; second, that the decrease in value based on the omitted information would be reflected in the final agreement. Neither of those contingencies had been resolved as of the date of the sale of the plaintiff's interest. Thus, any enhancement in the actual value of the beneficial interest at the time of its sale due to the ongoing negotiations would have been speculative.
In Pacelli Bros. Transportation, Inc. v. Pacelli, 189 Conn. 401, 456 A.2d 325 (1983), the plaintiffs' claim for damages also called for impermissible speculation about how negotiated terms would have differed but for an alleged fraudulent omission. There, three brothers, one of whom was the defendant, were equal stockholders in three trucking related businesses when two of the brothers suspected the defendant of misappropriation. Litigation ensued, the result of which was a settlement stipulating that the defendant would sell his share of the businesses to his two brothers. After about a year, however, the brothers subsequently discovered previously unknown misappropriations perpetrated by the defendant brother and brought an action predicated on his failure to make full disclosure of the misappropriations during settlement negotiations. Yet, rather than seek rescission of the settlement agreement, the plaintiffs elected to seek damages based on an allegedly unfair settlement agreement. The court noted that the plaintiffs were essentially attempting to retain the benefits of their settlement agreement while at the same time asking the court to award damages predicated on the assumption that the defendant would still have agreed to the settlement had his brothers known the entire truth. The court found " insurmountable difficulty" with this position and declined to speculate about what different terms might have been agreed upon had there been full disclosure. See also Beverly Hill Concepts, Inc. v. Schatz & Schatz, Ribcoff & Kotkin, 247 Conn. 48, 717 A.2d 724 (1998) (plaintiff's method of calculating lost profits was too speculative because it was based on erroneous conjectural assumptions and extrapolations about how profitable new business venture could have been but for defendants' tortuous actions); Coughlin v. Anderson, 270 Conn. 487, 853 A.2d 460 (2004) (Supreme Court upheld directed verdict because jury was given no means by which to assess damages arising from partial encumbrance on plaintiff's property); Criscuolo v. Shaheen, 46 Conn.Supp. 53, 736 A.2d 947 (1999) (plaintiff's allegation that defendant's conduct may potentially cause plaintiff to suffer increased tax liabilities was " inescapably speculative" and defendant's motion to strike complaint was granted).
In the present case, the damages claimed are more tangible and objectively ascertainable than in the cases cited by the defendant. This case is not analogous to Leisure Resort Technology, Inc. v. Trading Cove Associates, supra, 277 Conn. at 21, or Pacelli Bros. Transportation, Inc. v. Pacelli, supra, 189 Conn. at 401, where the finder of fact would have been required to speculate about how negotiations would have changed if the parties to the transaction had more information. In those two cases, as well as in Beverly Hill Concepts, Inc. v. Schatz & Schatz, Ribcoff & Kotkin, supra, 247 Conn. at 48 and Coughlin v. Anderson, supra, 270 Conn. at 487, the primary problem was that the plaintiffs could not offer a reliable method of proving what would have happened differently. The plaintiff here, in contrast, has put forth evidence that he is being deprived of long-term disability payments in precise dollar amounts for a precise number of months, both past and future. Indeed, unlike claims for damages predicated on assertions of increased tax liabilities, unfounded lost future profits, partial encumbrances or decreased expected value of beneficial interests in a business, the damages claimed are explicitly set forth in the plaintiff's insurance policy. This is not a case where the finder of fact must valuate abstract losses; there is less speculation involved in determining the outcome of a lawsuit with and without a valid statute of limitations defense than determining the outcome of negotiations with and without certain information on the bargaining table.
Although this case-within-a-case-within-a-case analysis involves hypothetical questions about what might have been absent the malpractice of two attorneys, the defendant cannot avoid liability by merely claiming that damages are too speculative— even if the underlying action is also legal malpractice. The evidence of the plaintiff's damages before this court provides a reasonable basis by which a finder of fact may estimate, if necessary, what might have occurred absent any malpractice on the part of the defendant. The damages are reasonably ascertainable and involve injuries to the plaintiff that have a concrete monetary value.
Accordingly, the damages claimed by the plaintiff are not too speculative to allow recovery and therefore the defendant is not entitled to judgment as a matter of law on that ground.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is denied.