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Botma v. Huser2/5/2002
AFFIRMED
The issue is whether Arizona, which prohibits assignment of a legal malpractice claim, should allow assignment of a legal malpractice claim that is packaged with assignment of a bad faith claim against an insurance carrier. The trial court held that such an assignment of a legal malpractice claim was invalid, and it dismissed the complaint. We affirm.
I.
In reviewing the grant of a motion to dismiss, we accept as true all well-pleaded facts, and we give plaintiffs the benefit of all inferences arising therefrom. Johnson v. McDonald, 197 Ariz. 155, 157, 2, 3 P.3d 1075, 1077 (App. 1999). The facts are summarized as follows: In September 1994, Steven Duane Botma negligently caused an auto accident in which Holly Lyn Castano, the daughter of Patricia A. Himes, suffered catastrophic injuries. Botma was driving a car that was covered by an insurance policy issued by Safeway Insurance Company ("Safeway") that had liability limits of $15,000 per person. The claims of Himes' daughter greatly exceeded the Safeway policy limits; her special damages exceeded $6,000,000.
In 1995, Himes offered to settle all claims against Botma for the $15,000 policy limits. Safeway contends that it accepted the offer in early 1996 and that Himes' attorneys drafted a settlement agreement/release and advised that Himes would sign the release. In June 1996, however, Himes withdrew the offer and filed suit against Botma (and also against the manufacturer and seller of the car in which Himes' daughter was injured). To represent Botma, Safeway hired Ronald E. Huser, local counsel for a Chicago law firm, Parrillo, Weiss & O'Halloran. Himes alleges, on information and belief, that the attorneys in this law firm have an ownership interest in Safeway and represent all Safeway insureds who are sued.
In a letter to Huser dated April 3, 1997, Charles D. Roush, an attorney for Himes, made a second offer to settle the case against Botma for the $15,000 policy limits. The letter advised Huser that Botma had been served by publication, that the due date for filing an answer had passed, and that "we are willing to settle Mr. Botma's liability for the limits of his available insurance." Huser would later state that he never received this letter. On April 14, 1997, Huser filed an answer to Himes' complaint - and a counterclaim seeking enforcement of Safeway's alleged acceptance of Himes' first offer to settle the case against Botma for the $15,000 policy limits. In response, Himes denied that her first offer to settle for $15,000 had ever been accepted, and she withdrew her second offer to settle for $15,000. In a one-line letter to Huser dated August 18, 1997, Roush wrote: "The offer to settle contained in my letter of April 3, 1997 is hereby withdrawn."
On September 17, 1997, while deposing Botma, Roush suggested to Botma that he should have a lawyer other than Huser:
[MR. ROUSH:] Has anyone ever suggested to you that you should have a personal attorney, other than Mr. Huser?
[MR. BOTMA:] No.
[MR. ROUSH:] I'm suggesting it to you right now, that it would be in your best interest.
MR. HUSER: I am going to object. You're not giving my client advice here today, Counsel.
MR. ROUSH: I just did.
In a letter dated September 19, 1997, Roush rejected Huser's avowal that he did not receive the April 3, 1997 offer to settle for policy limits, and Roush offered legal advice to Huser:
iven the interrelationship between your firm and Safeway Insurance Company, and given the fact that Mr. Botma may well have a professional negligence claim against your law firm
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