Nichols v. Keller

MARTIN, Acting P. J.

Introduction

. . . . Plaintiff appeals from summary judgments . . . in a legal malpractice action arising from an industrial accident. [Footnote 1]

=====FOOTNOTE 1=====

An order granting a motion for summary judgment, entire or partial, is a preliminary nonappealable order. Appeal must be taken from the final judgment ultimately entered in the case. . . . Here plaintiff erroneously appeals from a January 17, 1991, minute order taking the summary judgment motions under submission rather than the summary judgments entered March 4, 1991, and April 12, 1991. Where the trial court renders a summary judgment, the appellate court can treat an appeal from a preliminary order as an appeal from the subsequent judgment. . . .

=====Footnote End=====

Facts

In December 1987, Zurn Industries employed the 46-year-old plaintiff at a cogeneration plant construction project in Crow's Landing, Stanislaus County. Zurn was a subcontractor and Kiewit Industrial was the general contractor on the project. Plaintiff had been a union boilermaker for over 24 years. On December 7, plaintiff commenced work on the exterior of a large boiler. He was working on scaffolding approximately 50 feet above the ground. Plaintiff testified at deposition he was working on the uppermost level of scaffolding with no workers above him. However, a coworker declared there were individuals working on an unfinished catwalk above the plaintiff.

Sometime before noon, plaintiff completed a heliarc weld and removed his welding “hood,” which left only a cloth cap on his head. Plaintiff then reached for his hard hat when something hit him on the head. Plaintiff dropped to his knees on the scaffolding, although he apparently did not lose consciousness. He never saw the object that hit him on the head. However, someone told him it was a piece of steel approximately four inches by four inches by one-quarter-inch thick.

[. . .]

On February 24, 1988, plaintiff and his wife met with defendant E. Paul Fulfer, an attorney with the defendant firm of Fulfer & Fulfer, to discuss plaintiff's accident and legal rights and remedies. At the conclusion of the meeting, defendant Fulfer had plaintiff sign a workers' compensation application for adjudication of claim. Fulfer executed the form as “applicant's attorney” and filed the application on plaintiff's behalf with the Stockton office of the Division of Industrial Accidents/California Department of Industrial Relations. The Stockton office received the document on February 26, 1988. . . . Defendant Fulfer then associated defendant Edward Keller, an attorney with defendant firm of LaCoste, Keller, Mello & Land, to prosecute the workers' compensation claim. Fulfer signed a formal pleading bearing the caption “association of attorneys” on January 20, 1989.

Defendant Keller met with plaintiff on March 28, 1988, and said he would represent plaintiff in his pending workers' compensation matter against Zurn Industries and Aetna Casualty and Surety Company. Defendant Keller continued to represent plaintiff in the workers' compensation proceeding until July 1989.

Sometime in 1989, plaintiff and his wife traveled from their home in Nevada to a workers' compensation medical appointment in the San Francisco area. On their return trip, they visited the Boilermakers Union Hall in Pittsburg, California. Plaintiff and his wife spoke with union employees Jim Wilson and Greg Bingham regarding plaintiff's accident at the cogeneration plant. They suggested plaintiff meet with another attorney and scheduled an appointment with James Butler of the law offices of William L. Veen in San Francisco.

On July 7, 1989, plaintiff and his wife met with Attorney Butler. According to plaintiff:

“At this meeting I learned for the first time that a third-party claim could and very likely should have been brought in regards to my industrial injury in December 1987, and that my wife and I may have a legal claim against Edward C. Keller and Elbert Paul Fulfer, attorneys, who had failed to advise or inform us of these facts.”

On March 21, 1990, plaintiff filed a complaint for damages in Stanislaus County Superior Court. Plaintiff named Attorneys Keller, Fulfer, and their respective law firms as defendants. He alleged causes of action for legal malpractice and negligent spoliation of evidence against all defendants. He also alleged a cause of action for negligent referral against defendant Fulfer and his law firm.

On December 17, 1990, defendant Fulfer and his law firm filed a motion for summary judgment. Defendants alleged . . .(2) the attorney-client relationship, if any, which existed between defendant Fulfer and plaintiff was limited solely to the subject matter of plaintiff's workers' compensation claim; (3) plaintiff could never prove, as a matter of law, he ever possessed a valid third party claim based on the theories alleged in his complaint; (4) there was no basis under California law to allege a negligent spoliation theory against defendant under the facts set forth in the complaint; and (5) there was no evidence of negligent referral of the workers' compensation claim to defendant Keller.

On December 19, 1990, defendant Keller and his law firm also filed a motion for summary judgment. These defendants specifically alleged (1) no attorney-client relationship existed between defendant Keller and plaintiff beyond the workers' compensation claim “already begun and referred to defendant Keller”; (2) there was no basis under California law to allege a negligent spoliation theory against defendant Keller; . . . and (4) plaintiff could never prove he ever possessed a valid third party claim based upon the theory of peculiar risk of harm.

[. . .]

On January 31, 1991, the court filed a minute order granting defendants' motions for summary judgment. The court found no triable issues of fact regarding the causes of action for spoliation of evidence and negligent referral and noted these issues were not contested during the January 17, 1991, hearing. . . .

[. . .]

On February 27, 1991, the court filed a formal order granting defendant Fulfer's motion for summary judgment. On March 4, 1991, the court filed and entered an order granting defendant Keller's motion for summary judgment. . . .

[. . .]

On April 4, 1991, plaintiff filed a notice of appeal.

[. . .]

Discussion

I. Did Defendants Owe Plaintiff a Duty to Advise Him of the Possibility of a Third Party Civil Lawsuit and the Applicable Statute of Limitations?

Plaintiff contends:

“[A]n attorney does have a duty to provide sound advice in furtherance of the client's best interests. Mr. Nichols, a man of limited education . . . went to respondents seeking legal advice and representation from members of the Bar of California regarding any and all legal remedies he might be eligible for arising from his work injury. Respondents' failure to advise appellant that he may have a third party claim; respondents' failure to advise appellant regarding the applicable statute of limitations; and respondents' failure to refer appellant to an attorney experienced in third party actions was a breach of that duty.

“. . . In the instant case, the state of the law concerning the peculiar risk of harm and safe place to work doctrines was solidified and 'discoverable'. Appellant suffered fractures of his cervical vertebrae and brain damage when he was injured at the cogeneration plant construction site. There was a general contractor on site who, by all reports, was solvent, knew or should have known of the special risks presented by workers performing tasks in close vertical proximity to each other and who failed to take adequate and special precautions against this foreseeable risk of injury.”

Summary judgment is proper if the supporting papers are sufficient to sustain a judgment in favor of the moving party as a matter of law and the opposing party presents no evidence giving rise to a triable issue as to any material fact. . . . To prevail on a summary judgment motion, the defendant must conclusively negate a necessary element of the plaintiff's case or establish a complete defense. . . . A defendant has met his or her burden of showing a cause of action has no merit if that party has shown one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant has met that burden, the burden shifts to the plaintiff to show a triable issue of one or more material facts exists as to that cause of action. . . . Where the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff. . . . The evidence of the moving party is strictly construed and that of the opposing party liberally construed. . . . Where there is no material issue of fact to be tried and the sole question before the court is one of law, it is the duty of the trial court on a motion for summary judgment to hear and determine the issue of law. . . . In reviewing a grant of summary judgment, an appellate court must make its own independent determination of the construction and effect of the papers submitted. . . .

Actionable legal malpractice is compounded of the same basic elements as other kinds of actionable negligence: duty, breach of duty, causation, and damage. The elements of a cause of action for professional negligence are: (1) the duty of the professional to use such skill, prudence and diligence as other members of the profession commonly possess and exercise; (2) breach of that duty; (3) a causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence. When these elements coexist, they constitute actionable negligence. On the other hand, absence of, or failure to prove, any of them is fatal to recovery. An attorney, by accepting employment to give legal advice or render legal services, impliedly agrees to use ordinary judgment, care, skill, and diligence in the performance of the tasks he or she undertakes. . . .

The question of the existence of a legal duty of care in a given factual situation presents a question of law which is to be determined by the courts alone. Entry of summary judgment in favor of the defendant in a professional negligence action is proper where the plaintiff is unable to show the defendant owed such a duty of care. . . . Absent the existence of a duty by the professional to the claimant, there can be no breach and no negligence. . . .

[ . . . ]

A significant area of exposure for the workers' compensation attorney concerns that attorney's responsibility for counseling regarding a potential third party action. One of an attorney's basic functions is to advise. Liability can exist because the attorney failed to provide advice. Not only should an attorney furnish advice when requested, but he or she should also volunteer opinions when necessary to further the client's objectives. The attorney need not advise and caution of every possible alternative, but only of those that may result in adverse consequences if not considered. Generally speaking, a workers' compensation attorney should be able to limit the retention to the compensation claim if the client is cautioned (1) there may be other remedies which the attorney will not investigate, and (2) other counsel should be consulted on such matters. However, even when a retention is expressly limited, the attorney may still have a duty to alert the client to legal problems which are reasonably apparent, even though they fall outside the scope of the retention. The rationale is that, as between the lay client and the attorney, the latter is more qualified to recognize and analyze the client's legal needs. The attorney need not represent the client on such matters. Nevertheless, the attorney should inform the client of the limitations of the attorney's representation and of the possible need for other counsel. . . .

[ . . . ]

In their motions for summary judgment, defendant attorneys maintained they agreed to undertake only a limited employment. Attorney Fulfer asserted he agreed to represent plaintiff in the workers' compensation matter only and, even then, for two specific purposes: (1) to file a workers' compensation application on plaintiff's behalf, and (2) to refer plaintiff to defendant Keller, so the latter could actually prosecute the workers' compensation claim on plaintiff's behalf. Attorney Keller argued the attorney-client relationship between the plaintiff and himself was solely for the purpose of representation in the workers' compensation claim. Keller claimed he owed only a duty to prosecute that claim and not to prosecute any possible third party claim or to advise plaintiff as to the prosecution of such a claim. Defendants reiterate these positions on appeal.

[ . . . ]

Thus, defendants maintained they undertook limited duties to plaintiff and, as a matter of law, they owed him no duty to advise about possible third party claims, while plaintiff's expert, Yale Jones, declared their duties were far more expansive and required both counsel to advise plaintiff about various workers' compensation and civil remedies, the applicable statute of limitations for a third party action, the propriety of obtaining a “second opinion” as to available rights and remedies, and the precise scope of defendants' representation. The lower court's minute order concluded: “[I]t is undisputed that the representation was undertaken for the limited purpose of the workman's compensation claim. Furthermore, an attorney's obligation does not include a duty to advise on all possible alternatives no matter how remote or tenuous. [(Davis v. Damrell. . . .)]”

A determination that defendants owe plaintiff no duty of care would negate an essential element of plaintiff's cause of action for negligence and would constitute a complete defense. Whether a duty of care exists is a question of law for the court and is reviewable de novo. All persons are required to use ordinary care to prevent injury to others from their conduct. . . . A professional has a duty to use such skill, prudence and diligence as other members of the profession commonly possess and exercise. . . . Legal duties are not discoverable facts of nature. Rather, they are merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done. . . .

Foreseeability of harm, though not determinative, has become the chief factor in duty analysis. Confusion has arisen over the concept of foreseeability and the variety of roles it plays in tort law. Foreseeability is a question of fact for the jury in many contexts. However, in defining the boundaries of duty, foreseeability is a question of law for the court. The question of foreseeability in a “duty” context is a limited one for the court and is readily contrasted with the fact-specific foreseeability questions bearing on negligence (breach of duty) and causation posed to the jury or trier of fact. . . .

It seems to us the foreseeability factor compels a finding of duty in cases of this type. A trained attorney is more qualified to recognize and analyze legal needs than a lay client, and, at least in part, this is the reason a party seeks out and retains an attorney to represent and advise him or her in legal matters. . . . As Justice Brandeis observed a century ago:

“'The duty of a lawyer today is not that of a solver of legal conundrums: he is indeed a counsellor at law. Knowledge of the law is of course essential to his efficiency, but the law bears to his profession a relation very similar to that which medicine does to that of the physicians. The apothecary can prepare the dose, the more intelligent one even knows the specific for most common diseases. It requires but a mediocre physician to administer the proper drug for the patient who correctly and fully describes his ailment. The great physicians are those who in addition to that knowledge of therapeutics which is open to all, know not merely the human body but the human mind and emotions, so as to make themselves the proper diagnosis-to know the truth which their patients fail to disclose. . . .'” (Mason, Brandeis: A Free Man's Life. . . .)

What was true in 1893 is certainly true today in this increasingly complex and technologically advanced society in which we live. In the context of personal injury consultations between lawyer and layperson, it is reasonably foreseeable the latter will offer a selective or incomplete recitation of the facts underlying the claim; request legal assistance by employing such everyday terms as “workers' compensation,” “disability,” and “unemployment”; and rely upon the consulting lawyer to describe the array of legal remedies available, alert the layperson to any apparent legal problems, and, if appropriate, indicate limitations on the retention of counsel and the need for other counsel. In the event the lawyer fails to so advise the layperson, it is also reasonably foreseeable the layperson will fail to ask relevant questions regarding the existence of other remedies and be deprived of relief through a combination of ignorance and lack or failure of understanding. And, if counsel elects to limit or prescribe his representation of the client, i.e., to a workers' compensation claim only without reference or regard to any third party or collateral claims which the client might pursue if adequately advised, then counsel must make such limitations in representation very clear to his client. Thus, a lawyer who signs an application for adjudication of a workers' compensation claim and a lawyer who accepts a referral to prosecute the claim owe the claimant a duty of care to advise on available remedies, including third party actions.

[ . . . ]

The lower court erroneously granted summary judgment on the duty element of legal negligence, and reversal is required.

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