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Recently Closed Claims’ Lessons September 2019
Post on September 20th, 2019
OBLIC paid approximately $455,201 to resolve 11 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:
  • Commercial Matter – Insured defended a lawsuit against client for violation of safe-drinking water and wastewater violations but withdrew prior to trial. Client lost the matter at trial and new counsel handled an unsuccessful appeal. Client filed untimely suit against Insured after the appeal concluded that alleged that the Insured was responsible for loss at trial.
  • Consumer Law – Insured represented renters seeking damages for allegedly stolen property after the landlord left their property unlocked. Insured failed to timely respond to the landlord’s motion for summary judgment based on the defense’s forensic expert opinion that the photographs of the stolen items were taken four days after alleged theft.
  • Employment – Pro se claimant alleged that it was Insured’s error that the claimant’s employment discrimination complaint was summarily dismissed based on res judicata. Res judicata arose from claimant’s earlier pro se filings in which she failed to effectively prosecute.
  • Employment – Allegation that Insured provided inadequate legal advice on changes in overtime law that resulted in a Department of Labor overtime liability.
  • Plaintiff Personal Injury – Allegation that the Insured filed the car accident personal injury complaint one day after expiration of the statute of limitations.
  • Plaintiff Personal Injury – Allegation that the Insured failed to name the driver in a car accident personal injury case before the statute of limitations expired.
  • Plaintiff Personal Injury – Allegation that the Insured missed deadline to file required information in multi-district litigation that involved claims against a drug manufacturer.
  • Probate, Estates & Trust – Alleged malpractice arising from Medicaid application and estate planning that occurred during shift in how Medicaid qualifications were calculated.
  • Probate, Estates & Trust – Allegation that the Ohio Department of Job and Family Services was not properly notified by administrator of estate for payments of HMO to decedent after the estate was distributed to beneficiaries.
  • Real Estate – Insured represented buyer in seller-financed land sale. Insured indicated that deed to property would be held in escrow until disputes that arose after down payment was paid were resolved. Buyer, however, filed the deed to protect the down payment investment in property. Seller alleged Insured breached duty owed as escrow agent.
  • Real Estate – Insured prepared various deeds and transfers of several parcels for claimant. Claimant filed suit, pro se, alleging policyholder failed to protect his interest in an easement for a landlocked property after the adjacent property was lost by claimant in a foreclosure.
Many of the claims this month were resolved based on the expiration of the statute of limitations or failure of the pro se claimant to meet the requirements to prove their case against the insured. Even when filed timely, pro se claimants normally run afoul of the requirement to identify an expert to opine, at a minimum, as to the breach of the standard of care. These cases are not resolved quickly, however; discovery is usually required, and expert deadlines usually need to expire, before a motion for summary judgment can be filed on the failure to prove a breach.
As the examples further demonstrate this month, the errors in Plaintiff Personal Injury often come down to missed deadlines. Proximate causation and provable damages become the focus in these claims; although sometimes the missed deadline is repairable. If the error of a late-filed complaint is discovered quickly enough, it often makes sense to file the complaint anyway and then proceed with discovery. It is possible that a complaint that was filed a day or two late could still be timely if the defendant was out of state for enough time after the accident. See O.R.C. §2305.15(A).
The opportunity for errors in Probate, Estate & Trust (PET) claims, on the other hand, seem to be as limitless as they are unpredictable. This month, both closed claims involved errors in allegedly failing to know the law but in two different areas of PET. These types of errors do not typically come from new attorneys, but from those who are experienced practitioners. It is important to stay on top of prospective changes in the law and be aware of uncommon pitfalls that can result in malpractice. When there is a hint of something that is unusual, reach out to colleagues, do some extra research, and take the additional step to make sure you have everything covered.
Even when prevention is a pound rather than an ounce, it is still worth a ton of cure.
Many of the claims this month were resolved based on the expiration of the statute of limitations or failure of the pro se claimant to meet the requirements to prove their case against the insured. Even when filed timely, pro se claimants normally run afoul of the requirement to identify an expert to opine, at a minimum, as to the breach of the standard of care. These cases are not resolved quickly, however; discovery is usually required, and expert deadlines usually need to expire, before a motion for summary judgment can be filed on the failure to prove a breach.
As the examples further demonstrate this month, the errors in Plaintiff Personal Injury often come down to missed deadlines. Proximate causation and provable damages become the focus in these claims; although sometimes the missed deadline is repairable. If the error of a late-filed complaint is discovered quickly enough, it often makes sense to file the complaint anyway and then proceed with discovery. It is possible that a complaint that was filed a day or two late could still be timely if the defendant was out of state for enough time after the accident. See O.R.C. §2305.15(A).
The opportunity for errors in Probate, Estate & Trust (PET) claims, on the other hand, seem to be as limitless as they are unpredictable. This month, both closed claims involved errors in allegedly failing to know the law but in two different areas of PET. These types of errors do not typically come from new attorneys, but from those who are experienced practitioners. It is important to stay on top of prospective changes in the law and be aware of uncommon pitfalls that can result in malpractice. When there is a hint of something that is unusual, reach out to colleagues, do some extra research, and take the additional step to make sure you have everything covered.
Even when prevention is a pound rather than an ounce, it is still worth a ton of cure.
In addition to the Recently Closed Claims noted above, we also closed two 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.
* AOP with Two or Less Closed Claims are grouped claims in the following Areas of Practice:
  • Administrative Law/Social Security
  • Civil Rights
  • Consumer Law
  • Criminal Juvenile
  • Defendant Personal Injury
  • Immigration Law
  • Municipal – Civil
  • Municipal – Criminal
  • Municipal – Small Claims
  • Other
  • Patents
  • Plaintiff Legal Malpractice
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