In In re Guberman,978 A.2d 200 D.C.(2009), the D.C. Court of Appeals decided to suspend Attorney Mark Guberman for 18 months with requirement that after resumption of practice of law the attorney attend a course on professional responsibility, was warranted, as non-identical reciprocal discipline .
The District of Columbia Bar Rules create a rebuttable presumption that, when a member of the District of Columbia Bar has been disbarred, suspended, or placed on probation by another disciplining court, the discipline will be the same in the District of Columbia as it was in the original disciplining jurisdiction. Bar Rule XI, § 11.The Minnesota Supreme Court affirmed the referee’s conclusions that the lawyer knowingly made a false statement of fact to a tribunal in violation of Minn. R. Prof. Conduct 3.3(a)(1), 4.1, 8.4(c), and 8.4(d) and intended to deceive the court, in violation of Minn. R. Prof. Conduct. 8.4(c).
On April 13, 2006, the Court of Appeals of Maryland disbarred Mark S. Guberman, concluding that he engaged in conduct involving dishonesty and misrepresentation in violation of Rule 8.4(c) of the Maryland Rules of Professional Conduct (“MRPC”) and in conduct prejudicial to the administration of justice, in violation of MRPC Rule 8.4(d).FN1 After Bar Counsel reported the Maryland discipline to this Court, we issued an interim order suspending respondent from practice in this jurisdiction and directing the Board on Professional Responsibility (the “Board”) to provide its recommendation as to whether (1) this court should impose identical, greater or lesser discipline as reciprocal discipline, or (2) the Board should commence an original-discipline proceeding. In its Report and Recommendation dated November 6, 2007 (“Report”), the Board recommended that we impose non-identical reciprocal discipline-specifically, a suspension of 18 months. We now adopt the Board's recommendation.
Mr. Guberman engaged in conduct involving dishonesty and misrepresentation in violation of Rule 8.4(c) ... by falsely representing to Mr. Cooper and other representatives of the firm that he had filed an appeal in [the client's] case. He engaged in conduct prejudicial to the administration of justice [in violation of Rule 8.4(d)] by creating falsified filing stamps on papers, falsely certifying that the papers had been filed in court.
Wednesday, September 8, 2010
Delaware: Attorneys to Face Consequences for Real Estate Error
Plaintiff, Regina Shea filed a malpractice suit against defendant lawyer Raymond D. Armstrong of Delcollo & Werb P.A.. The Superior Court of the State of Delaware in and for New Castle County granted the lawyers' motion to dismiss, holding that the complaint was time-barred. The client appealed.
The Plaintiff, Regina Shea claimed that she suffered damages due to Raymond D. Armstong, Esq., error in failure to remove her ex-husband's name, Brian Bucher from the title or deed to real estate; at the time of a refinancing after her divorce or due to the lawyers' failure to inform her that the ex-husband's name remained on the deed. The Plaintiff’s complaint alleged that the attorney Raymond D. Armstrong of Delcollo & Werb P.A., represented to Ms. Shea that the property was in her name only. In the appellate court it was found that the Ms. Shea’s ex-husband’s name was continuing injury, therefore, occurred on date of the refinancing. However, the complaint was filed almost a year after the Del. Code Ann. tit. 10, § 8106 three-year statute of limitations expired; the claim was time-barred unless the "time of discovery" rule applied. Because the trial court erred to view the complaint n the light most favorable to the non-moving party, the appellate court found that the Ms. Shea was unaware that the ex-husband's name remained on the deed until she tried to refinance again, more than two years later. The Plaintiff, Ms. Shea was blamelessly ignorant of her inherently unknowable claim until she discovered the injury at the time of the later refinancing. Therefore, the "time of discovery" rule applied and the complaint was timely.
http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/
The Plaintiff, Regina Shea claimed that she suffered damages due to Raymond D. Armstong, Esq., error in failure to remove her ex-husband's name, Brian Bucher from the title or deed to real estate; at the time of a refinancing after her divorce or due to the lawyers' failure to inform her that the ex-husband's name remained on the deed. The Plaintiff’s complaint alleged that the attorney Raymond D. Armstrong of Delcollo & Werb P.A., represented to Ms. Shea that the property was in her name only. In the appellate court it was found that the Ms. Shea’s ex-husband’s name was continuing injury, therefore, occurred on date of the refinancing. However, the complaint was filed almost a year after the Del. Code Ann. tit. 10, § 8106 three-year statute of limitations expired; the claim was time-barred unless the "time of discovery" rule applied. Because the trial court erred to view the complaint n the light most favorable to the non-moving party, the appellate court found that the Ms. Shea was unaware that the ex-husband's name remained on the deed until she tried to refinance again, more than two years later. The Plaintiff, Ms. Shea was blamelessly ignorant of her inherently unknowable claim until she discovered the injury at the time of the later refinancing. Therefore, the "time of discovery" rule applied and the complaint was timely.
http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/
Connecticut: Thinking about bringing lawyer to court for legal malpractice? Think again.
Link for opinion: http://www.jud.ct.gov/external/supapp/Cases/AROap/AP109/109ap426.pdf
In Ackerly and Brown, LLP v Richard Smithies among many others found on the State of Connecticut Judicial Branch website (http://jud.ct.gov/) the issue of legal malpractice was brought forward but the court system ruled on the side of the attorneys.
In this case the attorney Michael Sconyers, partner in Ackerly and Brown, LLP, represented the Smithies’ in a lawsuit involving a failed residential lease. A third party sued them for damages. Conyers informed that the case could be settled for a lesser amount and to bring this to court would be expensive and the outcome would be uncertain. After a four day trial, they jury returned a verdict in favor of the third party and awarded damages of approximately $25,000. The damages ended up being reduced to $8000.
Sconyers filed a complaint seeking collecting of the outstanding balance owed by the Smithies’. Smithies’ filed and answer and counterclaim essentially claiming Sconyers had committed legal malpractice. Prior to the start of evidence, the plaintiff filed a motion to preclude the defendants from presenting any evidence regarding legal malpractice. The reason for filing this motion was the defendants’ failure to disclose an expert witness in accordance with the rules of practice. In the decision handed down by the court the absence of expert testimony proved fatal to the defendants’ claim of legal malpractice. In the Civil Jury Instructions 3.8-5 it is stated that malpractice is professional negligence. “Because jurors are probably unfamiliar with legal procedures, methods, etc…cannot be expected to know the demands of proper legal representation. It is for this reason that expert testimony is required to define the standard of care or the duty owing from the lawyer to his client….” (http://www.jud.ct.gov/JI/civil/part3/3.8-5.htm) If it is required that an expert witness is a necessary that can be a HUGE deterrent to clients wanting to bring a legal malpractice against their attorney. The cost might not be worth the effort.
After further research on the State Grievance Committee website on the State Connecticut Judicial Branch website many of the decision this was affirmed that most decision went in favor of the attorney and very rarely were recommended to higher courts for decision for discipline. When there was a recommendation for discipline to find out what that was for the particular attorney was difficult if not impossible to locate.
In Ackerly and Brown, LLP v Richard Smithies among many others found on the State of Connecticut Judicial Branch website (http://jud.ct.gov/) the issue of legal malpractice was brought forward but the court system ruled on the side of the attorneys.
In this case the attorney Michael Sconyers, partner in Ackerly and Brown, LLP, represented the Smithies’ in a lawsuit involving a failed residential lease. A third party sued them for damages. Conyers informed that the case could be settled for a lesser amount and to bring this to court would be expensive and the outcome would be uncertain. After a four day trial, they jury returned a verdict in favor of the third party and awarded damages of approximately $25,000. The damages ended up being reduced to $8000.
Sconyers filed a complaint seeking collecting of the outstanding balance owed by the Smithies’. Smithies’ filed and answer and counterclaim essentially claiming Sconyers had committed legal malpractice. Prior to the start of evidence, the plaintiff filed a motion to preclude the defendants from presenting any evidence regarding legal malpractice. The reason for filing this motion was the defendants’ failure to disclose an expert witness in accordance with the rules of practice. In the decision handed down by the court the absence of expert testimony proved fatal to the defendants’ claim of legal malpractice. In the Civil Jury Instructions 3.8-5 it is stated that malpractice is professional negligence. “Because jurors are probably unfamiliar with legal procedures, methods, etc…cannot be expected to know the demands of proper legal representation. It is for this reason that expert testimony is required to define the standard of care or the duty owing from the lawyer to his client….” (http://www.jud.ct.gov/JI/civil/part3/3.8-5.htm) If it is required that an expert witness is a necessary that can be a HUGE deterrent to clients wanting to bring a legal malpractice against their attorney. The cost might not be worth the effort.
After further research on the State Grievance Committee website on the State Connecticut Judicial Branch website many of the decision this was affirmed that most decision went in favor of the attorney and very rarely were recommended to higher courts for decision for discipline. When there was a recommendation for discipline to find out what that was for the particular attorney was difficult if not impossible to locate.
Colorado: Determining the Reasonableness of Fee Agreements.
Berra v Springer and Steinberg PC, 2010 Colo. App. LEXIS 1167.
Case Opinion Link: http://www.courts.state.co.us/Courts/Court_of_Appeals/opinion/2010/08CA2503.pdf.
Alternate Link (includes links to cited cases): http://scholar.google.com/scholar_case?case=17242722455507956809&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Springer and Steinberg P.C. and Jeffrey Springer (S&S, collectively) appealed the trial court’s ruling in favor of Cathy Berra which resulted in a refund of a portion of a contingency fee. Judgment affirmed.
Cathy Berra hired S&S on a contingency fee agreement to represent her in the collection of a judgment against George Wilkinson that she was awarded in a personal injury case. S&S was unsuccessful in collecting anything from Wilkinson, and they failed to revive Berra’s judgment lien on Wilkinson’s property in Pitkin County, losing first position and requiring a new lien to be filed. Years later, Wilkinson was diagnosed with a terminal illness and sold his property to Pitkin County for an amount large enough to cover Berra’s judgment plus interest. S&S received thirty percent of the judgment plus interest in accordance with the contingency fee agreement.
Berra, believing the fee to be excessive, brought action against S&S, filing claims for declaratory judgment, unjust enrichment, and breach of contract. The trial court, applying the criteria in Chapter 23.3 of the Colorado Rules of Civil Procedure and Rule 1.5 of the Colorado Rules of Professional Conduct to the facts of the case, found that the fees were indeed unreasonable and excessive. The trial court then, using quantum meruit analysis, calculated the reasonable fee amount that S&S was entitled to, based on the number of hours worked, the hourly rate, and the level of risk involved.
The trial court found the contingency fee agreement unreasonable and excessive based on the following facts: (1) although a contingency fee was appropriate due to the risk involved in Berra’s case, a 30% contingency fee was not typical for the collection of a pre-existing judgment, and, in retrospect, the risk to Berra and S&S was minimal given the actual value of Wilkinson’s property (Rule 1.5[a][3]); (2) the resolution of the case was not brought about by the efforts and/or skills of S&S, but by Wilkinson’s fortuitous decision to sell his property for a price that would cover the judgment plus interest (Rule 1.5[a][1]; and (3) collections cases are not overly difficult as they are “governed by very clear rules, statutes, and case law,” therefore the case did not require a high level of skill (Rule 1.5[a][1]).
In their appeal, S&S claimed that the trial court erred in applying quantum meruit analysis without first finding the contingency fee agreement invalid and unenforceable. The appellate court disagreed, saying that the invalidity and unenforceability of the agreement was implied by both the circumstances of the case and from the trial court’s finding that the fees were unreasonable and excessive.
S&S also took issue with the trial court’s analysis of the enforceability of the fee agreement, claiming that the trial court erred when they retrospectively evaluated the risk and difficult of the case instead of basing the evaluation solely on the risk and difficulty of the case as understood at the time of the contract. The appellate court disagreed again, stating that the court could consider the “amount of time spent, the novelty of the questions of law, and the risk of non-recovery to the client and attorney” when evaluating the enforceability of the agreement. People v. Nutt, 696 P.2d 242, 248 (Colo. 1984).
This case offers a detailed look into how the courts evaluate the reasonableness of contingency fee agreements based on the criteria in Rule 1.5. It also serves as a reminder to attorneys that their fees need to be earned, not just enjoyed.
Case Opinion Link: http://www.courts.state.co.us/Courts/Court_of_Appeals/opinion/2010/08CA2503.pdf.
Alternate Link (includes links to cited cases): http://scholar.google.com/scholar_case?case=17242722455507956809&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Springer and Steinberg P.C. and Jeffrey Springer (S&S, collectively) appealed the trial court’s ruling in favor of Cathy Berra which resulted in a refund of a portion of a contingency fee. Judgment affirmed.
Cathy Berra hired S&S on a contingency fee agreement to represent her in the collection of a judgment against George Wilkinson that she was awarded in a personal injury case. S&S was unsuccessful in collecting anything from Wilkinson, and they failed to revive Berra’s judgment lien on Wilkinson’s property in Pitkin County, losing first position and requiring a new lien to be filed. Years later, Wilkinson was diagnosed with a terminal illness and sold his property to Pitkin County for an amount large enough to cover Berra’s judgment plus interest. S&S received thirty percent of the judgment plus interest in accordance with the contingency fee agreement.
Berra, believing the fee to be excessive, brought action against S&S, filing claims for declaratory judgment, unjust enrichment, and breach of contract. The trial court, applying the criteria in Chapter 23.3 of the Colorado Rules of Civil Procedure and Rule 1.5 of the Colorado Rules of Professional Conduct to the facts of the case, found that the fees were indeed unreasonable and excessive. The trial court then, using quantum meruit analysis, calculated the reasonable fee amount that S&S was entitled to, based on the number of hours worked, the hourly rate, and the level of risk involved.
The trial court found the contingency fee agreement unreasonable and excessive based on the following facts: (1) although a contingency fee was appropriate due to the risk involved in Berra’s case, a 30% contingency fee was not typical for the collection of a pre-existing judgment, and, in retrospect, the risk to Berra and S&S was minimal given the actual value of Wilkinson’s property (Rule 1.5[a][3]); (2) the resolution of the case was not brought about by the efforts and/or skills of S&S, but by Wilkinson’s fortuitous decision to sell his property for a price that would cover the judgment plus interest (Rule 1.5[a][1]; and (3) collections cases are not overly difficult as they are “governed by very clear rules, statutes, and case law,” therefore the case did not require a high level of skill (Rule 1.5[a][1]).
In their appeal, S&S claimed that the trial court erred in applying quantum meruit analysis without first finding the contingency fee agreement invalid and unenforceable. The appellate court disagreed, saying that the invalidity and unenforceability of the agreement was implied by both the circumstances of the case and from the trial court’s finding that the fees were unreasonable and excessive.
S&S also took issue with the trial court’s analysis of the enforceability of the fee agreement, claiming that the trial court erred when they retrospectively evaluated the risk and difficult of the case instead of basing the evaluation solely on the risk and difficulty of the case as understood at the time of the contract. The appellate court disagreed again, stating that the court could consider the “amount of time spent, the novelty of the questions of law, and the risk of non-recovery to the client and attorney” when evaluating the enforceability of the agreement. People v. Nutt, 696 P.2d 242, 248 (Colo. 1984).
This case offers a detailed look into how the courts evaluate the reasonableness of contingency fee agreements based on the criteria in Rule 1.5. It also serves as a reminder to attorneys that their fees need to be earned, not just enjoyed.
California: Law Firm allegedly Violates Consumer Protection Laws
In, Patrick Kirk V. First American Title Insurance Company; It started with class actions involving ethical violations including: kick-backs to lenders for referring clients, escrow related fees exceeding state limits, while not giving discounts to clients who qualified for them, and specific fee over-charges (messenger fees, wire transfer fees, and sub escrow fees).
Four years after the litigation began for the class actions, the attorneys representing the First American Title Ins. Company, moved to another law firm. An attorney from their new firm had previously received confidential information about the First American Title Ins. co. cases. When the firm learned of this previous contact regarding the attorney they established an ethical screening around said attorney. Leading to an order from the Superior Court of Los Angeles County, which disqualified their firm based on allegations of violating consumer protection laws.
The firm appealed the Superior Courts decision, at which time the Court of Appeals of California, 2nd Appellate District, Division 3, reviewed whether the disqualification was legitimate based on the facts. The outcome of court of appeals decision reversed the order that had disqualified the firm and remanded the case to the trial courts for further proceedings, as per (Rules of Professional Conduct, Rule 3-310-E).
(2010). Kirk v. First American Title Ins. Co. California: Lexis Nexis. Retrieved August 22, 2010, from LexisNexis (2010 Cal. App. LEXIS 478 ).
In the after-math of these proceedings and while seeking more information I found that By a six to one vote, the California State Supreme Court declined to review the Court of Appeal decision in Kirk v. First American Title Insurance Company (2010) 183 Cal.App.4th 776.
(2010). Retrieved September 4, 2010, from http://www.lawfirmrisk.com/2010/06/california-supreme-court-upholds.html
legalethicsforum.com
(2010). PATRICK KIRK et al., Plaintiffs and Respondents, v. FIRST AMERICAN TITLE INSURANCE COMPANY et al., Defendants and Appellants. Retrieved September 3, 2010, from Lexis Nexis Academic.
Four years after the litigation began for the class actions, the attorneys representing the First American Title Ins. Company, moved to another law firm. An attorney from their new firm had previously received confidential information about the First American Title Ins. co. cases. When the firm learned of this previous contact regarding the attorney they established an ethical screening around said attorney. Leading to an order from the Superior Court of Los Angeles County, which disqualified their firm based on allegations of violating consumer protection laws.
The firm appealed the Superior Courts decision, at which time the Court of Appeals of California, 2nd Appellate District, Division 3, reviewed whether the disqualification was legitimate based on the facts. The outcome of court of appeals decision reversed the order that had disqualified the firm and remanded the case to the trial courts for further proceedings, as per (Rules of Professional Conduct, Rule 3-310-E).
(2010). Kirk v. First American Title Ins. Co. California: Lexis Nexis. Retrieved August 22, 2010, from LexisNexis (2010 Cal. App. LEXIS 478 ).
In the after-math of these proceedings and while seeking more information I found that By a six to one vote, the California State Supreme Court declined to review the Court of Appeal decision in Kirk v. First American Title Insurance Company (2010) 183 Cal.App.4th 776.
(2010). Retrieved September 4, 2010, from http://www.lawfirmrisk.com/2010/06/california-supreme-court-upholds.html
legalethicsforum.com
(2010). PATRICK KIRK et al., Plaintiffs and Respondents, v. FIRST AMERICAN TITLE INSURANCE COMPANY et al., Defendants and Appellants. Retrieved September 3, 2010, from Lexis Nexis Academic.
Arkansas: Attorney Disciplinary Proceedings
Plouffe v. Ligon
On December 1, 2008 appellant attorney, Plouffe, sued the appellee director of professional conduct office, Ligon, to enjoin attorney disciplinary proceedings the director initiated against the attorney. Such disciplinary proceedings relate to a brief filed by Plouffe on July 5, 2007 in an appeal before the Arkansas Court of Appeals. In the opinion, a three-judge panel concluded that Plouffe’s brief contained inappropriate and irrelevant remarks, and such remarks came close to a breach in the Model Rules of Professional Conduct. After Ligon investigated the Chamberlain brief, he filed an ethics complaint against Plouffe before the Committee on Professional Conduct. This complaint claimed that Plouffe violated Rule 8.4(d) of the Arkansas Rules of Professional Conduct which provides that professional misconduct is that in when the lawyer engages in conduct that is prejudicial to the administration of justice. After this complaint, Plouffe filed an action against Ligon asking to enjoin the attorney disciplinary proceedings. Ligon moved to dismiss the complaint arguing the court should avoid hearing this matter under the Younger abstention doctrine; the district court agreed that the Younger abstention applied and dismissed the complaint. Plouffe appealed.
The Younger abstention doctrine provides that the federal courts should abstain from using jurisdiction when 1) there is an ongoing state proceeding, 2) which implicates important state interests, and 3) there is an adequate opportunity to raise any relevant federal questions in such a proceeding. In Plouffe’s appeal, he argued that two requirements for abstention are not met, requirement 2 and 3. Also, Plouffe argues that his statements made in the Chamberlain brief were protected under the First Amendment. The courts found that the presence of such requirements in question did exist thus affirming the judgment of the district court and dismissing Plouffe’s complaint.
On December 1, 2008 appellant attorney, Plouffe, sued the appellee director of professional conduct office, Ligon, to enjoin attorney disciplinary proceedings the director initiated against the attorney. Such disciplinary proceedings relate to a brief filed by Plouffe on July 5, 2007 in an appeal before the Arkansas Court of Appeals. In the opinion, a three-judge panel concluded that Plouffe’s brief contained inappropriate and irrelevant remarks, and such remarks came close to a breach in the Model Rules of Professional Conduct. After Ligon investigated the Chamberlain brief, he filed an ethics complaint against Plouffe before the Committee on Professional Conduct. This complaint claimed that Plouffe violated Rule 8.4(d) of the Arkansas Rules of Professional Conduct which provides that professional misconduct is that in when the lawyer engages in conduct that is prejudicial to the administration of justice. After this complaint, Plouffe filed an action against Ligon asking to enjoin the attorney disciplinary proceedings. Ligon moved to dismiss the complaint arguing the court should avoid hearing this matter under the Younger abstention doctrine; the district court agreed that the Younger abstention applied and dismissed the complaint. Plouffe appealed.
The Younger abstention doctrine provides that the federal courts should abstain from using jurisdiction when 1) there is an ongoing state proceeding, 2) which implicates important state interests, and 3) there is an adequate opportunity to raise any relevant federal questions in such a proceeding. In Plouffe’s appeal, he argued that two requirements for abstention are not met, requirement 2 and 3. Also, Plouffe argues that his statements made in the Chamberlain brief were protected under the First Amendment. The courts found that the presence of such requirements in question did exist thus affirming the judgment of the district court and dismissing Plouffe’s complaint.
Arizona Professional Negligence
Case: Webb v. Gittlen, 174 P. 3d 275 (Az. 2008)
Facts: In 2000, Neal and Gail Berliant purchased The Liquor Vault, a retail liquor store located in Scottsdale, Arizona. With the assistance of Victoria Gittlen, a licensed insurance agent, they purchased a business liability policy and a liability umbrella policy for their new business from Hartford Casualty Insurance Company (“Hartford”). The Berliants contend that Gittlen failed to inform them that they could also purchase separate liquor liability coverage.
Issue: In Webb v. Gittlen, the Arizona Supreme Court unanimously held that claims against insurance agents for professional negligence are assignable to third parties. The decision overturned Premium Cigars International, Ltd. v. Farmer-Butler-Leavitt Insurance Agency, in which the Arizona Court of Appeals held such assignments invalid as contrary to public policy.
Rule of law: Insured’s assigned to plaintiff assignee their rights to sue defendants, an insurance agent and an insurer. The assignee sued defendants, the agent, the insurer, and an insurance agency, alleging negligence and breach of fiduciary duty. A trial court dismissed the claims. The Court of Appeals Division One, Arizona, affirmed. The instant court granted review to consider whether insured’s could assign claims against their insurance agent.
Holding: The decision of the court of appeals and the judgment of the trial court were reversed. The case was remanded for further proceedings.
After Webb v. Gittlen, Arizona joins the majority of jurisdictions that permit assignment of professional negligence claims against insurance agents. The relationship between insurance agents and their clients is personal, but it is not uniquely personal like the relationship between attorneys and their clients. Absent this uniquely personal relationship, the Arizona Supreme Court found no compelling justifications for maintaining the non-assignability rule that prevailed in Arizona for more than five years.
http://scholar.google.com/scholar_case?case=8305606056891876773&hl=en&as_sdt=2&as_vis=1&oi=scholarr
http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic
http://www.supreme.state.az.us/opin/pdf2008/cv070127pr.pdf
Facts: In 2000, Neal and Gail Berliant purchased The Liquor Vault, a retail liquor store located in Scottsdale, Arizona. With the assistance of Victoria Gittlen, a licensed insurance agent, they purchased a business liability policy and a liability umbrella policy for their new business from Hartford Casualty Insurance Company (“Hartford”). The Berliants contend that Gittlen failed to inform them that they could also purchase separate liquor liability coverage.
Issue: In Webb v. Gittlen, the Arizona Supreme Court unanimously held that claims against insurance agents for professional negligence are assignable to third parties. The decision overturned Premium Cigars International, Ltd. v. Farmer-Butler-Leavitt Insurance Agency, in which the Arizona Court of Appeals held such assignments invalid as contrary to public policy.
Rule of law: Insured’s assigned to plaintiff assignee their rights to sue defendants, an insurance agent and an insurer. The assignee sued defendants, the agent, the insurer, and an insurance agency, alleging negligence and breach of fiduciary duty. A trial court dismissed the claims. The Court of Appeals Division One, Arizona, affirmed. The instant court granted review to consider whether insured’s could assign claims against their insurance agent.
Holding: The decision of the court of appeals and the judgment of the trial court were reversed. The case was remanded for further proceedings.
After Webb v. Gittlen, Arizona joins the majority of jurisdictions that permit assignment of professional negligence claims against insurance agents. The relationship between insurance agents and their clients is personal, but it is not uniquely personal like the relationship between attorneys and their clients. Absent this uniquely personal relationship, the Arizona Supreme Court found no compelling justifications for maintaining the non-assignability rule that prevailed in Arizona for more than five years.
http://scholar.google.com/scholar_case?case=8305606056891876773&hl=en&as_sdt=2&as_vis=1&oi=scholarr
http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic
http://www.supreme.state.az.us/opin/pdf2008/cv070127pr.pdf
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