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Tegman v. Accident & Medical Investigations8/13/2001
concerns she had about the operation of AMI. Assuming all this to be true, it does not prevent Noble from being held responsible for the improper settlement of Tegman's case and the conversion of Tegman's funds by McClellan. Even though both events occurred after Noble left AMI, she knew enough before she left to be charged with knowledge that McClellan was engaged in fraudulent conduct. It is undisputed that she knew there was not a proper attorney trust account at AMI, and she knew of at least the one instance in which McClellan had already attempted to settle Tegman's case without Tegman's consent. Nevertheless, she turned over Tegman's file to McClellan when she left and did not directly confirm that another attorney was assuming responsibility for it. She did not contact Tegman directly when she left and she did not advise Tegman that her file had been left with a non-lawyer. These facts adequately link Noble to Tegman's injury, and support the court's inference that but for Noble's omissions, Tegman would have withdrawn from AMI in time to avoid her injury.
Noble also contends that McClellan's misconduct severed her liability because it was an unforeseeable intervening cause. We reject this argument for the same reasons it was rejected in Bullard. Ordinary human experience should have led Noble to expect that Tegman would suffer some harm at the hands of McClellan. Bullard, 91 Wn. App. at 759.
MITIGATION
Tegman testified that even while she trusted McClellan, she had concerns about the operation of AMI through their relationship. Noble contends Tegman could have mitigated her damages if she had sought legal counsel earlier to discuss these concerns, and that her failure to do so was contributory negligence.
It was Noble's burden to prove Tegman failed to mitigate. Kloss v. Honeywell Inc., 77 Wn. App. 294, 301, 890 P.2d 480 (1995) (citing Bernsen v. Big Bend Electric Coop., 68 Wn. App. 427, 435, 842 P.2d 1047 (1993)). Noble has not cited to any portion of the record in which she raised this issue with the trial court or sought a finding on Tegman's alleged failure to mitigate her damages. It is not the role of an appellate court to find facts. Noble's failure to preserve this issue below precludes review in this court. John Doe v. Puget Sound Blood Center, 117 Wn.2d 772, 780, 819 P.2d 370 (1991); RAP 2.5(a).
MEDICAL REIMBURSEMENT
The trial court found that the reasonable settlement value of the general damage portion of Tegman's case was $35,000. This is the amount for which McClellan actually settled it. He had previously advanced $7,532.50. After the settlement he paid $4,034.50 to Tegman's insurance company as reimbursement for their medical payments. He retained $10,500 for himself in accordance with a 30 percent contingency fee agreement, and sent Tegman the balance of $12,933.
In calculating Tegman's damages, the court assessed her general damages at $35,000. The court deducted from this sum the amounts Tegman actually did receive, but did not deduct the $4,034.50 paid to her insurance company. The court's memorandum decision states, 'It is the court's understanding from the evidence that all of her medical and health care expenses have been paid, and therefore the court need not enter any judgment for special damages.'
Noble contends that the court should have deducted the $4,034.50 paid to the insurance company. She argues that Tegman was unjustly enriched by that sum, an improper result when a contract is rescinded. Noble did not raise this issue below. As Noble raises it for the first time on appeal, we need not review it. John Doe v. Puget Sound Blood Center, 117 Wn.2d at 780;
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