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Miller v. Pisano10/31/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Lawrence D. Miller appeals from a judgment in favor of respondent Joseph Pisano on Miller's action for equitable indemnity. The action arises from a previous personal injury lawsuit and ensuing malpractice action by the personal injury plaintiff against attorneys Miller, Pisano and Mitchell Ellis for failing to bring the underlying case to trial within five years. Miller contends the trial court erred as a matter of law in determining that Pisano had no vicarious liability for the malpractice in the underlying lawsuit or any legal responsibility therefor to Miller. Because the decision of the trial court was supported by undisputed evidence and correct as a matter of law, we affirm.
Factual and Procedural Background
After suffering injury in a slip and fall accident in July 1990, Michael Fay retained attorney Ellis to represent him in a personal injury action. On April 9, 1991, Ellis filed suit on behalf of Fay. In 1992, Ellis associated appellant Miller to assist in the litigation of Fay's case.
In associating Miller to work on the case with him, Ellis utilized a retainer agreement identifying the law office representing Fay as the "law firm of Pisano and Ellis." At the time, Pisano and Ellis utilized letterhead, fax cover sheets and preprinted pleadings with the firm name "Pisano and Ellis," and had the same office telephone number. Ellis represented to Fay that he and Pisano were law partners, and Fay believed that they were. In fact, although they had at that time been working at the same address sharing office space and expenses for approximately 10 years, Pisano and Ellis were independent attorneys. Pisano was never Ellis's law partner, and was not involved in assisting Ellis on the Fay case in any way. Miller knew that Pisano was not working on the Fay case, and he had either actual knowledge or reasonable notice that Ellis and Pisano were not law partners.
Miller was the attorney assigned to attend a trial setting conference on Fay's personal injury lawsuit. Miller set the Fay matter for trial on a date that was past the five-year deadline. As a result the Fay case was dismissed for failure to comply with the five-year statute. (Code Civ. Proc., ยง 583.310.)
Fay filed an action for legal malpractice against Ellis, Miller, and the fictitious firm of "Pisano and Ellis." Miller carried errors and omissions insurance coverage; neither Ellis nor Pisano had such coverage. Miller's malpractice insurance carrier nevertheless in effect provided Ellis and Pisano with a "courtesy defense." Ultimately, the insurer paid Fay $75,000 in settlement of Fay's lawsuit. In exchange, Fay and his attorney executed a global settlement and release prepared by Miller's malpractice insurer's outside counsel. This settlement agreement released not only Miller, but also Ellis, the fictitious firm of "Pisano & Ellis," and "any and all other agents, employees, persons, firms, associations, or corporations . . . who are or may ever become liable to the undersigned, of and from any and all claims, demands, damages, actions and causes of action of every kind, known or unknown, arising out of or in any way connected with the occurrence out of which it is claimed that the undersigned suffered damage to person and property and which resulted in the undersigned's legal malpractice claim against the parties released herein .
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