Monday, May 27, 2013

No Emotional Distress Damages For Legal Malpractice

The Vermont Supreme Court reversed an award of damages for emotional distress in a legal malpractice case.

The court did not rule out the possibility of such damages but found an insufficient basis here:

...we conclude that the trial court erred in awarding damages for plaintiff’s emotional distress in this case.  Assuming without deciding that Vermont law follows the modern trend of allowing damages under certain circumstances for serious emotional distress in legal malpractice claims and that the evidence in this case could support a finding of sufficiently serious emotional anguish to support such a claim, we conclude that the subject of defendant’s representation of plaintiff was not of such a personal and emotional nature that it would support an exception to the general rule disallowing recovery of emotional distress damages in the absence of either physical impact or substantial bodily injury or sickness.  In many ways, this case is less compelling than the loss-of-home cases cited above; plaintiff here did not lose his home but, rather, faced a threatened loss of his home which he ultimately avoided by settling the case.  We do not mean to suggest that the anxiety associated with the threatened loss of one’s home cannot be profound.  But in contrast to the loss of liberty or one’s child—very significant losses for which there may be no adequate measure of pecuniary damages, and in connection with which serious emotional distress can be readily expected—what plaintiff ultimately lost in this case was money.  We consider plaintiff’s losses in this case to be economic, and reverse the trial court’s award of emotional distress damages to plaintiff.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2013/05/the-vermont-supreme-court-reversed-an-award-of-damages-for-emotional-distress-in-a-legal-malpractice-case-the-court-did-not.html

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Comments

I wonder if there had been (allowed) a separate action for breach of fiduciary duty, whether the emotional damages might be enough.

Posted by: Alan Childress | May 28, 2013 8:19:12 AM

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