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McCafferty v. Musat12/13/1990
The defendants, L. Richard Musat and Opland & Musat, P.C. (collectively Musat), appeal the judgment entered upon a jury verdict finding them negligent in their legal representation of the plaintiff, William J. McCafferty. We affirm.
In April 1980, plaintiff, while employed as a miner at the Climax Molybdenum mine near Leadville sustained serious injuries during certain blasting operations that used an explosive fuse cord, Primacord, manufactured by the Ensign-Brickford Co. The injury occurred when a miner on a different level of the mine lit the Primacord while McCafferty was still holding a box of it.
After receiving workers' compensation benefits and seeking legal advice from other attorneys, McCafferty contacted Musat concerning a tort case against Ensign-Bickford and the Climax Molybdenum Co. In January 1982, McCafferty and Musat entered into a retainer agreement whereby Musat and his firm agreed to:
"Take charge of [McCafferty's] claim for purposes of investigating said claim, filing a lawsuit and if, in counsel's judgment, the claim or claims, after initial discovery are meritorious in their judgment to pursue it to final determination or disposition, by legal proceedings or compromise of settlement, as may seem proper and advisable."
Musat advised McCafferty that, because of the Workmen's Compensation Act of Colorado, he had no cause of action against his employer. After analysis, Musat determined that he would file a claim based on the negligent failure of Ensign-Bickford to prepare and implement adequate instructions and safeguards for the use of its Primacord product. Musat sought and received permission from McCafferty to retain co-counsel with experience in product liability cases. Accordingly, Musat proceeded to retain one Griffith. Musat, however, was to remain McCafferty's legal contact.
After preliminary research and investigation were done, Musat and Griffith, on or about May 21, 1982, filed a lawsuit on McCafferty's behalf in the United States District Court. Musat advised McCafferty that he had a strong case and that he "would probably end up settling [the case] for $60,000 a year for the rest of [McCafferty's] life."
The law firm representing Ensign-Bickford was Hall & Evans. Unbeknownst to McCafferty, Musat, beginning in October 1982, actively sought employment with that firm. And, by December 14, 1982, he had told McCafferty's occupational therapist that he would soon be working for Hall & Evans. Thereafter, prior to the completion of a substantial amount of discovery, and before he ever apprised McCafferty of his conflict of interest, Hall & Evans offered Musat a job .
On December 22, 1982, Musat telephoned McCafferty to notify him of the job offer. He then informed McCafferty of his conflict of interest arising as a result of the job offer. Despite his prior statements to McCafferty that his case, although imperfect, was strong, he now told McCafferty that, in his opinion, he had no case against Ensign-Bickford and that Ensign-Bickford was sure to win at trial. Musat therefore proceeded to convey to McCafferty a settlement offer from Ensign-Bickford, via Hall & Evans as counsel, in the amount of $5,000. He recommended that McCafferty accept the offer, calling it a "gift" tendered as a favor to Musat.
Despite his recommendation that McCafferty accept the offer, Musat suggested that McCafferty first discuss it with co-counsel Griffith. McCafferty, however, replied that he trusted Musat's opinion and would do whatever Musat recommended. Nevertheless, McCafferty did contact Griffith, pursuant to Musat's suggestion. Griffith, however, told him that he could not discuss th
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