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LeCorre v. Bejesse Belford Dolewski & DeMicco (N.Y.App.Div. 02/28/2000)
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Supreme Court2/28/2000
Argued - September 7, 1999
In an action to recover damages for legal malpractice, (1) the defendant third-party plaintiff second third-party plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), entered August 25, 1998, as (a) denied those branches of its cross motion which were for summary judgment dismissing the complaint and for summary judgment in the third-party and second third-party actions on the issues of indemnification and contribution, and (b) granted the motion of the second third-party defendant for summary judgment dismissing the second third-party complaint, and (2) the third-party defendants cross-appeal, as limited by their brief, from so much of the same order as denied their cross motion for summary judgment dismissing the third-party complaint.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion of the second third-party defendant for summary judgment dismissing the second third-party complaint and substituting therefor a provision denying that motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
In 1988, the plaintiff, Pamela A. LeCorre, retained the law firm of Bijesse Belford Dolewski & DeMicco (hereinafter Bijesse) to commence an action to recover damages for the injuries she allegedly sustained in an automobile accident. Bijesse settled that action for $100,000, which was the limit of the offending driver's liability insurance policy.
At the time of the accident, the plaintiff was covered by an automobile liability insurance policy issued by Amica Mutual Insurance Company (hereinafter Amica). That policy had a rider providing supplemental underinsured motorist insurance to the plaintiff. When LeCorre filed a claim for underinsured motorist benefits with Amica, Amica questioned whether she breached the terms of the policy by settling the personal injury action without its consent. When Bijesse realized that it may have jeopardized LeCorre's recovery for supplemental underinsured motorist benefits, it advised her to retain new counsel.
LeCorre subsequently retained the law firm of Joachim, Flanzig & Beasley (hereinafter Joachim), which advised LeCorre that a malpractice action against Bijesse was premature since there was no formal disclaimer of coverage. When Joachim filed a notice of intention to arbitrate LeCorre's underinsurance claim, Amica moved to permanently stay arbitration on the ground that its consent had not been obtained prior to settling the personal injury action, thereby possibly jeopardizing its subrogation rights. That motion was granted.
Thereafter, LeCorre commenced this legal malpractice action against Bijesse, and Bijesse commenced a third-party action against Joachim for indemnification and contribution on the ground that Joachim failed to adequately oppose the stay of arbitration. Bijesse subsequently commenced a second third-party action against Amica for indemnification and contribution on the ground that Amica's fraudulent and negligent misrepresentations in connection with its handling of LeCorre's claim for underinsured motorist benefits and its motion to permanently stay arbitration caused LeCorre's loss of her underinsured motorist benefits. In its bill of particulars, Bijesse also claimed that Amica breached its duty to deal with LeCorre in good faith.
Contrary to the determination of the Supreme Court, Bijesse established the existence of triable issues of fact as to whether Amica implicitly consented to LeCorre's settlement of the underlying personal injury action for the poli
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