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Whittington v. Kelly12/14/2005
laim but then failed to file her suit on time. The district court granted the attorneys' motion for summary judgment, but a divided court of appeal reversed, finding "issues of material fact as to whether Mrs. Beis suffered emotional distress as a result of the defendants' admitted legal malpractice."
While we acknowledge the statements in Beis, we find them hard to square with the more recent statement of the supreme court in Costello v. Hardy, supra: "A plaintiff can have no greater rights against attorneys for the negligent handling of a claim than are available in the underlying claim." Moreover, a claim for emotional distress, in the absence of a physical injury , normally requires proof that (1) the defendant's conduct was "extreme and outrageous," (2) the plaintiff's emotional distress was severe, and (3) the defendant desired to inflict emotional distress or knew that such distress would be certain or substantially certain to result from his conduct. White v. Monsanto Co., 585 So. 2d 1205 (La. 1991). Whittington candidly admitted that after he left the Magellan, he sought no psychiatric attention or counseling of any kind; only some nine months later, on Kelly's recommendation, did he contact a social worker. He admitted holding several other jobs and even running for sheriff in July 2003. Upon de novo review, we find Whittington would not be able to prove his entitlement to damages for emotional distress. The district court was not wrong in granting the motion for summary judgment.
We must observe, however, that Whittington has made an exceedingly strong showing of the first element of emotional distress -- that Kelly's conduct was extreme and outrageous. It is undisputed that Kelly initially told Whittington he had a "good case," and over a 31/2 -month period reassured him that his claim was significant. Kelly had him sign two affidavits to be filed with the EEOC and sent him for treatment with a social worker, thus reinforcing Whittington's confidence in his claim and his attorney. Impressively, Kelly made a $750,000 demand on Whittington's employers and forwarded a copy to Whittington. Even when he withdrew from the case, Kelly reiterated that Whittington had a "good claim" and had been "greatly harmed." Only later did Whittington learn that Kelly failed to file suit and, in a shocking turnaround, thought the sexual harassment claim had no validity. We are troubled by the timing of Kelly's withdrawal from the case, as well as the competence of his representations to Whittington. Nonetheless, these considerations do not justify reversing the summary judgment.
Conclusion
For the reasons expressed, the summary judgment is affirmed. Costs are assessed to the appellant, James Whittington.
AFFIRMED.
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