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Barrett v. Freise11/24/2003
8, 13 P.3d 1065 (2000). Ultimate facts, conclusions of fact, conclusory statements of fact or legal conclusions are insufficient to raise a question of fact. Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 359-60, 753 P.2d 517 (1988).
To establish a legal malpractice claim, a plaintiff must establish the existence of an attorney-client relationship, the existence of a duty on the part of the lawyer, failure of the lawyer to perform the duty, and that the lawyer's negligence in failing to perform proximately caused damage to the client. Halvorsen v. Ferguson, 46 Wn. App. 708, 711, 735 P.2d 675 (1986).
There is no evidence in the record that Freise was negligent in advising deferred consummation of the American States settlement commitment pending resolution of the tavern claim. Freise was attempting to obtain a larger amount for the Barretts by holding the prospect of joint and several liability over the tavern's head, and the Barretts do not contend, nor can they, that Freise's joint and several liability advice concerning the American States offer was legally incorrect. See Kottler v. State, 136 Wn.2d 437, 447, 963 P.2d 834 (1998) (settling, released, and immune parties are not parties 'against whom judgment is entered' and will not be jointly and severally liable under RCW 4.22.070(1)(b)). Moreover, more than a year after Jeff's injury , Kahr, in her role as Jeff's dissolution attorney, told Freise that she agreed that acceptance of the American States settlement commitment should be deferred. And, after she took over Jeff's representation in the personal injury matter, she, too, deferred consummating the settlement, for the same reason.
Nevertheless, John and Jeff argue on appeal that deferring acceptance of American States' commitment to pay policy limits caused Jeff to lose interest income on those settlement proceeds. While this is true, it does not follow that Freise breached any duty to Jeff in counseling the deferral. As the trial court observed at the time of the summary judgment, more than a year had elapsed since Kahr took over Jeff's representation, and Kahr had done nothing of substance to prosecute the tavern claim. When Kahr eventually filed suit against the tavern, she filed it in King County, separately from the corresponding suit against the drunk driver, which she filed in Snohomish County thereby assuring, according to the trial court's unchallenged conclusion of law, that joint and several liability would be lost. And then Kahr waited until November of 2000 to consummate the settlement with American States. The court clearly did not err, at the time of summary judgment, when it concluded that no genuine issue of material fact prevented entry of judgment as a matter of law that Freise breached no duty owed to Jeff Barrett with regard to his advice to defer accepting the settlement commitment by American States, and that Jeff was not injured by any negligence, on Freise's part, with respect to that advice.
The trial court also concluded, at the time of summary judgment, that Freise did not violate any duty owed to Jeff Barrett by consummating the $100,000 settlement of the UIM claim, and by paying the net proceeds of that settlement over to JoLynn Barrett. There was no evidence whatsoever that JoLynn was contemplating divorce at the time of that settlement, or that if she was, she had communicated her concerns about the viability of the marriage to Freise or his staff. The undisputed evidence was that JoLynn first told Freise's legal assistant on June 20, 1996, that she anticipated filing for divorce at the end of summer. By then, the settlement with the UIM carrier had long since been consummated and the net proceeds paid to JoLynn. No evid
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