Day on Torts
The defendant and his law firm was hired to bring a wrongful death action for decendent’s (Anderson’s) estate and to assert loss of consortium action by Anderson’s wife. The case was dismissed, arguably after the experts in the case were thrown out after a Daubert challenge.. Lawyer did not timely appeal the dismissal of the case. Several years later, Anderson’s two children – one still a minor – sued Atty for malpractice. They asserted the statute of limitations for malpractice was tolled by their infancy. Atty resisted discovery and quickly moved for summary judgment, asserting he had no attorney-client relationship with the children.
Notably, Pete had not asserted a claim for damages for the children
The trial judge dismissed the case, saying that did not have privity with Pete, and thus did not enjoy an attorney-client relationship with Pete and lacked standing to sue for professional negligence.
On appeal, the children argued that
(1) that an attorney-client relationship actually existed and is supported by Elizabeth’s [ the decedent’s wife] reasonable belief that Pete was representing her children as well as herself and the Estate; (2) that although the wrongful death claim was brought on behalf of the Estate, an estate is only a nominal party in a wrongful death action and the real parties in interest are the beneficiaries under the statute (which included Elizabeth, Malik, and Michael in the present case); and (3) in the alternative, even if privity did not exist, an attorney in this jurisdiction is liable for damage caused by his negligence to any party intended to be benefited by his performance.
The Court found that a factual issue was present on the issue of whether the decedent’s wife believed that Pete was representing the children as well as the Estate. However, the Court went further and ruled as follows:
if Pete is found not to be in privity with Michael and Malik because discovery reveals that the parties contracted for him to represent Elizabeth solely and not the children, he will still have owed duties to Michael and Malik as intended beneficiaries of the wrongful death action. Thus, the result is inescapable that Pete owed a duty to Michael and Malik — whether as attorney to client or as attorney to intended beneficiary. [emphasis supplied by the Court]
My belief is that the same result would be reached if this case had arisen under Tennessee law. Under Tennessee wrongful death law, certain people have the right to file a wrongful death suit, but they bring the case on behalf of beneficiaries. Those beneficiaries are usually known before suit is filed. The beneficiaries have no right to file suit on their own unless they fall within the definition of those authorized to file suit. Thus, they must depend on the named-plaintiff to protect their interests. It only makes sense that the lawyer owes a duty to the beneficiaries.
Let me hasten to add that I have no idea whether this claim has any merit. The question presented was one of standing to sue, and nothing else.
The case is Anderson v. Pete, No. 2010-CA-000472-MR, (KY. Ct. App. Oct. 7, 2011).