Monday, November 25, 2013

Lawyers For Wrongful Death Estate Claim Owe Duties To Minor Children

The Kentucky Supreme Court affirmed the holding of the Court of Appeals that there were genuine issues of material fact precluding summary judgment to a law firm that had been sued for malpractice.

The trial court had held the plaintiffs lacked standing "because they did not have an attorney-client relationship" with the defendants.

The Court of Appeals reversed on two grounds.

First, there was a factual issue concerning the existence or not of an attorney-client relationship. Second, the plaintiffs were two minor children when the estate came into existence, and as "statutorily-identified beneficiaries of the wrongful death claim" were owed professional duties by the attorneys.

The suit arose from an accident that killed a man survived by a wife and four children. He was driving a van that struck a wall. A suit against the company charged with maintaining the van was dismissed after experts were excluded. No appeal was filed.

The malpractice suit was filed two years later. By then, one of the minor children had reached the age of majority.

The court majority found that the minor children  "were real parties in interest with regard to the wrongful death claim....As intended beneficiaries of the claim," the actions of the attorneys were taken on their behalf.

The statute of limitations was tolled as to the malpractice claim "until they reached the age of majority."

Justices Noble and Scott concurred and dissented, both writing opinions expressing concerning for the position the decision places wrongful death attorneys who may face malpractice actions years in the future when children reach majority age.

Justice Noble would require the personal representative to bring ancillary claims on behalf of children in a timely manner.

Justice Scott laments the dilemma of the attorneys who must now serve multiple masters in the conduct of litigation.

in his view, the majority holding "simply doesn't contribute to an efficient system of litigation; not to mention the conflicts it now raises with one counsel having duties to potentially antagonistic multiple parties. We shouldn't be leaving one hundred years or more of good, workable precedent."  (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2013/11/estate-lawyers-owe-duties-to-minor-children.html

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