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Shimer v. Foley9/16/2003
the settlement offer and its value, was therefore error.
ii. Collectibility.
The judge also ruled that Shimer had offered insufficient proof that he would have been able to collect from Synthes the funds derived from his acceptance of the offer. A plaintiff in a malpractice action, who asserts that his attorney's negligence prevented him from obtaining a judgment to which he was entitled, bears the burden of proving that he "could have collected something" on the judgment. Jernigan v. Giard, 398 Mass. at 723. See Poly v. Moylan, 423 Mass. at 148. Proving collectibility derives from the requirement that the plaintiff demonstrate that the attorney's negligence caused him a loss, "that he probably would have obtained a better result had the attorney exercised adequate skill and care." Jernigan v. Giard, 398 Mass. at 723, quoting from Fishman v. Brooks, 396 Mass. at 647. Even with admission of the evidence of the Synthes offer supporting his claim for damages, Shimer must still demonstrate that Synthes had the financial ability to pay the amounts to which it agreed in order to establish that FHE's negligence caused him an actual loss.
Shimer maintains that he did not have to prove collectibility because his loss here arose from his rejection of a contract proposal, rather than from a lost judgment. He urges that a less stringent standard should be applied where the underlying loss is an offer extended by a willing party seeking a consensual resolution of a dispute rather than a judgment reached through adversary proceedings. Though not specifically addressed in our cases, the available authority suggests otherwise. See Whiteaker v. State, 382 N.W.2d at 117 (the plaintiff, claiming he could have obtained a favorable settlement but for his attorney's negligence, failed to offer evidence that the underlying defendant had the "financial wherewithal to fund any settlement proposal which its attorney may have thought reasonable"), cited in Jernigan v. Giard, 398 Mass. at 723. Collectibility is not a measure of a party's willingness to make a payment or to provide a benefit to another. Rather, it is an assessment of a party's ability to do so. Accordingly, it is appropriate to determine the ability of a party to carry out an obligation regardless of whether the obligation is entered into voluntarily or ordered by the court. When it comes to the necessity to prove collectibility, we see no reason to distinguish such cases from each other.
Shimer additionally argues that he should have been allowed to offer evidence of collectibility through his own testimony regarding his first-hand knowledge of Synthes's financial status, as well as through his experience as a consultant to a Synthes competitor. As previously noted, we view Shimer's evidence of Synthes's solvency under the summary judgment standard; thus, we construe the evidence most favorably to Shimer, and we afford him the benefit of all reasonable inferences. See Salem Bldg. Supply Co. v. J.B.L. Constr. Co., 10 Mass. App. Ct. 360, 365 (1980).
First, Shimer proposed to testify that Synthes continued to pay him for his services under his former contractual arrangement even after he rejected Synthes's final offer made in December, 1993, and that Shimer continued to receive timely payments from Synthes until the relationship ceased, in August, 1994. The judge rejected this evidence as proof that Synthes could have funded the significant sums proposed in the Synthes offer.
To be sure, Shimer's evidence fell far short of demonstrating that Synthes had sufficient income and assets to fund all amounts proposed in Synthes's last offer, which allegedly included $750,000 to buy out Shimer's existing business.
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