Indiana: Malpractice claims against attorney to insurer

Link for opinion: 930 N.E.2d 53 (can access through Westlaw)

In Ashby v. Davidson, 930 N.E.2d 53 (Ind. 2010), clients filed suit against Attorney Davidson for malpractice and negligence. Davidson was disbarred and later participated in crimes across the nation. The issue is whether Davidson’s insurer was responsible for the claims and if they had been properly filed.

Prior to Davidson’s spurts of criminal behavior he was insured through Bar Plan over a period of roughly two years. Multiple complaints were filed for his negligence or breach of care to various clients. Bar Plan, Davidson’s previous insurer, requested a motion for declaratory judgment to which the trial court awarded. The appellate court then had to look to see if there was error.

Bar Plan brought forth the issues that Davidson did not notify them of the suits nor did he assist in the investigation of the claims. They were then awarded summary judgment. However, the “clients” disagreed with this result and brought forth the issue to the higher courts. Bar Plan pointed out that their client did not give notice as were the conditions that were to be adhered to and that the claims hadn’t been filed in the time period covered. Although, the courts found that because of Davidson’s fleeing and criminal actions he was not there to give proper notice for the actions and that the clients had filed their claims within the appropriate time frame.

In sum, the higher courts held that the clients’ notice was proper and true to which they reversed and remanded the trial court’s decision. Bar Plan attempted to use similar terms as in Paint Shuttle, however the court found that there was not adequate facts to connect the two cases. This case demonstrates how attorney’s have insurance to cover for negligence and malpractice and that there are circumstances where, should the attorney be M.I.A, the clients still have an opportunity for action. Clearly, this attorney was involved in multiple situations that not only violated the Rules of Professional Conduct, but also state and possible federal crimes.