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Guidry v. Coregis Insurance Co.12/29/2004
AFFIRMED IN PART AS AMENDED, REVERSED IN PART, AND RENDERED.
Woodard, J., concurs in part and assigns written reasons.
Both the Plaintiffs and Defendants appeal the trial court's judgment in this legal malpractice suit. We reverse the damages awarded to Randi Guidry because she is not a proper party to recover wrongful death or survival damages. We vacate the trial court's JNOV, reinstate the jury's verdict, amend its judgment to increase the quantum of damages for pain and suffering, and render.
This appeal arises from Ms. Julie Guidry's legal malpractice claim against two attorneys, Mr. James L. Daniels and Mr. Lawrence D. Wiedemann, for allowing her potential cause of action for the wrongful death of her husband, Melvin Guidry, to prescribe. The underlying action arose when her husband died after being electrocuted in the course and scope of his employment as a billboard and sign repairman for Signko, Inc. (Signko). On June 23, 1997, Signko sent him to the Lucky Longhorn Truckstop (Lucky) to repair a "Chevron" sign. After he arrived, Lucky's manager, Mr. James William Hayes, asked him to work on some of the other signs, as well. To access them, Melvin utilized a Sponco SL-55 aerial ladder, a ladder attached to a truck that has a bucket at the end to hold the operator. While working on the signs, he contacted with some overhead power lines, electrocuting him and throwing him to the ground. He died from the injuries a few hours after the accident.
Julie retained Mr. Daniels to pursue her claims for his death. Daniels referred her case to Mr. Weidemann, retaining an interest in any potential recovery. However, neither attorney filed her suit within one year of Melvin's death, allowing her claim to prescribe. Consequently, she filed a legal malpractice action against the two attorneys, on her own behalf and on behalf of her two daughters, both minors at the time she filed suit. She alleged that the attorneys' negligence prevented her from recovering against several defendants who shared responsibility for her husband's death. She also prayed for damages associated with the legal malpractice.
Aside from distress resulting from the legal malpractice, itself, the plaintiffs' damages in a legal malpractice suit are determined by the damages, if any, they would have received had they prevailed in the underlying lawsuit.
Accordingly, in order to determine whether the attorneys' malpractice caused her and her daughters any damages, the jury had to determine whether and how much they would have recovered in the underlying suit. Essentially, the jury in the legal malpractice suit had to "engage in a pretend exercise of measuring damages based on events that never in reality occurred or can occur," because the malpractice foreclosed their opportunity to pursue their underlying claims against the actual persons allegedly responsible for Melvin's death.
The attorneys asserted that they would not have recovered any damages in the underlying suit because Melvin and his employer were solely at fault for the accident; any damage awards would have been reduced by his own comparative negligence. Additionally, because the Louisiana Workers' Compensation Act is the exclusive remedy for any potential claims against Melvin's employer, Signko, the Plaintiffs could not have recovered the damages associated with Signko's fault in the underlying wrongful death action. Rather, the Office of Workers' Compensation has jurisdiction over the Plaintiffs' potential claim against Signko.
Furthermore, in the instant case, the Plaintiffs reached a settlement with Signko under the workers' compensation laws while their suit against the two attorn
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