 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Weisberger v. Home Ins. Cos.11/25/1991
STILLMAN, Judge.
Appellant, Donald D. Weisberger, brought suit against Milton J. Guth, alleging that they were co-counsel in a wrongful death action in which Guth held the proceeds and paid the beneficiaries but never paid appellant. Appellee, Home Insurance Company, was also a defendant in appellant's action, as Guth's insurer on his legal malpractice insurance policy. A judgment was entered in which "the parties" agreed that there had been a trust agreement between appellant and Guth and that therefore Guth would pay appellant $30,750. However, Guth failed to do so and appellant sued appellee to enforce the judgment. Appellee filed a motion for summary judgment which argued that the claim was not covered by Guth's policy because there was no attorney-client relationship between appellant and Guth, there is no recovery. for attorney fees incurred in obtaining a judgment, no liability for intentional acts, and breach of contract, not legal malpractice, was alleged below. Appellee insisted that it had been dismissed from appellant's suit against Guth and did not participate in the judgment. Appellee's motion was granted. On appeal appellant assigns five errors for review:
"The court erred in granting defendant-appellee the Home Insurance Companies, motion for summary judgment.
"The court erred in refusing to grant plaintiff-appellant's motion for summary judgment."
"The court erred in failing to find that a litigating attorney is liable for malpractice to his co-counsel when he engages in self-dealing by failing to make distribution of wrongful death settlement funds which he collected in his fiduciary capacity as trustee of funds intended for vested beneficiaries with whom he was in privity.
"The court erred in failing to find that a malpractice insurance carrier is liable under its coverage when a covered attorney, in his capacity as trustee of settlement funds, wrongfully retains his co-counsel's distributive share."
Civ. R. 56(C) states in pertinent part as follows:
"Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor."
Appellant argues that Guth's actions arose out of professional conduct and therefore were covered by the policy. Appellant reasons that Guth acted in a fiduciary capacity when he held the proceeds for the benefit of the vested beneficiaries and appellant and therefore Guth is liable to appellant because appellant and the fiduciaries are in privity.
"An attorney is immune from liability to third persons arising from his performance as an attorney in good faith on behalf of, and with the knowledge of his client, unless such third person is in privity with the client or the attorney acts maliciously." (Emphasis added.) Scholler v. Scholler (1984), 10 Ohio St.3d 98, 10 OBR 426, 462 N.E.2d 158, paragraph one of the syllabus.
"A beneficiary whose interest in an estate is vested is in privity wit
Page 1 2 3 4 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|