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ATS6/3/2003
st in an injured employee's legal malpractice recovery against the employee's attorney could result in double recovery to the employer. If there is to be windfall in such a situation, it should go to the injured employee rather than to the employer or insurer. See, e.g. , Douthet , 546 S.W.2d at 159-60 (in a situation where permitting an insurer to reduce its liability on uninsured motorist coverage would be a windfall to insurer, windfall should go to injured person rather than to insurer).
Moreover, extending Section 287.150 to include employees' negligent attorneys as liable third persons would, in effect, give employers the right independently to sue attorneys with whom they have no relationship. See General Box Co. v. Missouri Utils. Co. , 55 S.W.2d 442, 446 (Mo. 1932) (subrogation statute contemplates that both employer and employee are real parties in interest and either may bring suit for himself and as trustee of express trust for benefit of other without joining other).
Additionally, we find the policy concerns which disfavor assignment of legal malpractice claims apply equally to the subrogation of such claims under consideration here. In White , the court noted the public policy concerns inherent in assigning legal malpractice claims, and concluded that assignment of such claims could " restrict the availability of competent legal services, embarrass the attorney-client relationship and imperil the sanctity of the highly confidential and fiduciary relationship existing between attorney and client." White , 984 S.W.2d at 160, (internal quotation marks omitted) (quoting Goodley v. Wank & Wank, Inc., 133 Cal. Rptr. 83, 87 (1976)).
In conclusion, our consideration of "third person" liability and "injury" in Missouri's workers' compensation subrogation statute, as well as our review of prior decisions in uninsured motorist and medical malpractice situations, persuades us that Employer and Insurer do not have a subrogation interest in any recovery made by Employee against his former attorneys for legal malpractice. The trial court did not err in granting summary judgment in favor of Employee.
Due to our conclusion, we need not address other arguments presented by the parties.
The judgment of the trial court is affirmed.
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