Monday, June 27, 2022


The Wyoming Supreme Court remanded a legal malpractice case that the district court concluded had been settled

Patricia Kappes filed a legal malpractice lawsuit against Diana Rhodes after Ms. Rhodes failed to timely file an application with the Wyoming Medical Review Panel and a wrongful death lawsuit pertaining to the death of Ms. Kappes’ mother. Ms. Rhodes counterclaimed for breach of contract, alleging she and Ms. Kappes had entered into a valid and enforceable agreement to settle the legal malpractice claim for $100,000 which Ms. Kappes breached by filing suit. The district court granted summary judgment in favor of Ms. Rhodes on her counterclaim. Because there is a genuine issue of material fact as to whether the parties entered into a lawfully enforceable settlement agreement, we reverse and remand.

The defendant agreed to investigate the claim but

Ms. Rhodes discovered she had mis-calendared the statute of limitations as February 15, 2017, rather than February 5, 2017. She contacted ALPS Property & Casualty Company (ALPS), her legal malpractice carrier, and spoke with Christopher Fagan, a claims adjuster and licensed attorney, about a potential legal malpractice claim against her for mishandling Ms. Kappes’ claim. According to Ms. Rhodes, Mr. Fagan told her to send him her file and to tell Ms. Kappes ALPS would be contacting her. Thereafter, Ms. Rhodes held a telephone conference with Ms. Kappes and Dr. Bonnie Randolph, Ms. Kappes’ niece and Ms. Tanner’s granddaughter, and informed them her legal malpractice carrier would be contacting them. Ms. Kappes “figured it out right then and there [Ms. Rhodes committed] malpractice when she missed the deadline.” After she did not hear from the insurance carrier for over a week, Ms. Kappes called Ms. Rhodes’ office and obtained Mr. Fagan’s contact information.

Fagan offered $25,000

On May 1, 2017, she called Mr. Fagan and told him she believed the case was worth $100,000. Mr. Fagan informed Ms. Kappes he believed $100,000 was reasonable. He told her he would confirm the amount with other attorneys at ALPS and send her release forms for “all [her] relatives.” He also reminded her she could contact an attorney.

Rather than effectuate the settlement, Kappes hired counsel and sued.

No enforceable settlement agreement on this record

Viewing the facts in the light most favorable to Ms. Kappes, we conclude a genuine issue of material fact exists regarding whether the parties entered into a lawfully enforceable settlement agreement.

(Mike Frisch)

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