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Recently Closed Claims’ Lessons January 2020
Post on February 28th, 2020
OBLIC paid approximately $450,783 to resolve 13 claims that were closed last month.
Payments included loss payments, such as judgments awarded or settlement payments, and the attorneys’ fees and costs OBLIC paid to defend its insureds.
This is part of a continuing monthly series providing information on recently closed claims.
We will provide claim statistics on the areas of practice in which the act, error or omission occurred and generalized information on the cause of recently closed claims. Our intention with this series is to demonstrate the value that we provide to you, our insureds, through the experiences we have had with our other insureds and make you aware of the common areas of risk and ways to avoid similar claims in the future.
Hopefully, by seeing where your colleagues may have taken a step in error, you will know where to be cautious!
Recently Closed Claims by Area of Practice and Alleged Cause of the Claim:
  • Appellate – Allegation that Insured failed to include an argument that claimant insisted to be included in the appellate brief of a criminal conviction.
  • Appellate – Claimant alleged that Insured failed to submit a request for selective jurisdictional review with the Ohio Supreme Court. The failure allegedly resulted in a summary dismissal of the claimant’s habeas corpus petition.
  • Civil Rights – Claimant filed racial discrimination claims against a city. When Insured defended the city successfully, Claimant then filed a complaint with Ohio Civil Rights Commission alleging racial discrimination in the Insured’s representation of a city.
  • Domestic Relations – Pro se complaint in small claims alleging that Insured did not adequately assist with, or appear for, a hearing on child support and visitation.
  • Ethics – General allegation by client that Insured failed to adequately represent his interests before the disciplinary board of the professional licensing authority.
  • General Litigation – Confidential personal identifiers of an opposing party allegedly included in court filing that was subsequently amended to redact such information.
  • Plaintiff Personal Injury – Allegedly missed the date to refile a personal injury complaint under the savings statute following its dismissal.
  • Probate, Estates & Trust – Insured represented claimant in a family probate dispute involving allegations of undue influence. Jury found a prior amendment of the trust to be applicable, but claimant was excluded from any award through an in terrorem clause. Allegation by claimant that Insured should have advised to settle the claim and properly advised of the risks of trial.
  • Probate, Estates & Trust – Allegation that Insured failed to maintain payments on mortgage of ward’s property that resulted in foreclosure.
  • Real Estate – Insured served as trustee for several companies in receivership. Allegation by claimant that Insured failed to maintain proper records, maintain proper escrow records, and allegedly failed to act promptly to avoid damage to assets of the claimant’s companies.
  • Real Estate – Insured represented real estate buyer in purchase that required earnest money to be held in escrow. Client allegedly provided the earnest money via check but requested Insured hold check and not deposit it. Insured informed seller that earnest money was received. Client allegedly never provided the earnest money and terminated the deal. Claimant was seller seeking the earnest money funds.
  • Workers’ Compensation – Allegation that Insured failed to timely pursue a workers’ compensation claim on behalf of client.
  • Workers’ Compensation – Insured allegedly failed to timely appeal a Workers’ Compensation denial of the client’s rotator cuff injury.
There were some claims with clear error but the majority of the claims closed listed above involved questionable allegations of the breach of standard of care and even more questionable evidence of proximate causation.
Ohio courts have established that the claimant has “the burden of proving by a preponderance of the evidence that but for [the attorney’s] conduct, they would have received a more favorable outcome in the underlying matter.” Environmental Network Corp. v Goodman Weiss Miller, LLP, 119 Ohio St.3d 209, 893 N.E.2d 173, 2008-Ohio-3833 (2008).
A fair number of claimants miss this important element of malpractice or make conclusory assertions that attempt to tie their loss, or poor case development, to attorney conduct. The Insured may have missed a deadline or failed to appear for a hearing, but the claimant must prove that the outcome not only would have been different but that it would have been better than what actually resulted. Proximate causation can be fatal to the claimant’s complaint but regularly requires significant defense costs in order to get to the point of case disposition. It is just another reason to maintain malpractice insurance.
Cause of Claim does not mean that the claim was meritorious or that there were any damages arising from the alleged breach of the standard of care. The alleged cause is the brief summary of the allegation made by the claimant against our insured.
In addition to the Recently Closed Claims noted above, we also closed six disciplinary matters last month.
Disciplinary coverage is separate and apart from the coverage available for “Claims” and is not included in the totals noted above. All OBLIC Legal Professional Liability Policies provide an additional limited legal fee and expense coverage for disciplinary actions. The coverage is designed to reimburse you for the expenses for legal services charged by a lawyer to defend you.
See XIV. LIMITED LEGAL FEE AND EXPENSE COVERAGE FOR DISCIPLINARY ACTIONS in your policy for the terms and conditions of the disciplinary coverage.
Please contact me at cmarsh@oblic.com if you have any questions!
Carl Marsh, Esq.
Claims Counsel
Ohio Bar Liability Insurance Company
614-488-7924