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THURSTON v. CONTINENTAL CAS. CO.12/26/1989
In this case we decide that a legal malpractice claim may be assigned; that before the 1987 amendments to Maine's partnership law, a Maine partnership was not a suable entity (except in certain real estate related matters); that an insured's insolvency and inability to pay an excess judgment do not foreclose a damage claim against its insurance carrier and lawyer for
Inadequate legal representation and misconduct of 3K Kamper Ko.'s insurance carrier in a products liability action allegedly caused 3K to suffer judgment far in excess of its policy limits. The case could have been settled well within the amount of the policy. At the time of the judgment, 3K was not actively engaged in business, had entered into a settlement with its bank creditor by which it surrendered all its assets, and had allowed itself to be suspended as a corporation. In addition, 3K's two principals had been killed in an accident prior to the trial.
3K has been unable to pay the excess judgment. 3K's stockholders, in order to settle some claims by the products liability plaintiff against them, agreed to have 3K assign to her all 3K's rights against its lawyers and insurance carrier. As a result, she has brought this action against the insurance carrier, the individual lawyer and law firm for legal malpractice and failure to defend or settle. Since her rights are only those of 3K Kamper Ko., however, we shall refer to 3K throughout to avoid confusion.
ASSIGNMENT OF A LEGAL
MALPRACTICE CLAIM
We hold first that there is no reason to prohibit the assignment of a legal malpractice claim in a situation such as this. We are not here confronted with the establishment of a general market for such claims; this assignee has an intimate connection with the underlying lawsuit. Although some cases from other jurisdictions flatly prohibit the assignment of any legal malpractice claim, e.g., Goodley v. Wank and Wank, Inc., 62 Cal.App.3d 389, 397, 133 Cal.Rptr. 83, 87 (1976); Christison v. Jones, 83 Ill. App.3d 334, 338-39, 39 Ill.Dec. 560, 405 N.E.2d 8, 11 (1980), their reasoning is not persuasive. A legal malpractice claim is not for
A PARTNERSHIP AS A
SUABLE ENTITY
The next issue is whether one defendant, a law partnership, was properly before the Superior Court. In 1852, the Law Court recognized the common law rule that a partnership was not a legal entity that could be sued; instead individual partners had to be named specifically. Macomber v. Wright, 35 Me. 156, 157 (1852). Commentators treated this holding as the existing state of Maine law as late as 1970. See 1 Field, McKusick & Wroth, Maine Civil Practice § 4.4 at 65 (2d ed. 1970). In 1973, Maine adopted the Uniform Partnership Act. See 31 M.R.S.A. § 281-323 (1978 & Pamph. 1989). Unfortunately the Act does not squarely address the issue of whether a partnership can be sued. Its first draftsman, Dean Ames, adopted the entity theory of partnership, which would permit a suit. See 1 A. Bromberg & L. Ribstein, Partnership § 1.03 at 21 (1988). His successor, William Draper Lewis, endorsed the contrary, the aggregate theory of partnership, which would not permit a suit. Unif. Partnership Act comm'rs prefatory note, 6 U.L.A. 6 (1969). As a result, it is generally agreed that the Act shows evidence of both theories and does not answer
In 1987 we decided that a partnership could sue or be sued in a lawsuit involving real estate held in the partnership's name, but expressly limited our decision to that situation. New England Herald Dev. Group v. Falmouth, 521 A.2d 693 (Me. 1987). That same year the Legislature enacted specific legislation making partnerships subject to suit in general, 31 M.R.S.A.
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