Off The Hook: Maine Affirms Legal Malpractice Dismissal

The Maine Supreme Judicial Court has affirmed the dismissal of a legal malpractice claim on statute of limitations grounds

Packgen argues that its claim is not barred because the doctrines of continuing representation and continuing negligence operate to bring the date of the act or omission “giving rise to [its] injury”—Bernstein Shur’s failure to serve a proper notice of claim or file a defective-products probate,” the limitation period commences upon the discovery of the cause of action. 14 M.R.S. § 753-B(2)-(3) (2018). “The premise [of the doctrine of continuing representation] is that the cause of action in an attorney malpractice case should not accrue until the attorney’s representation concerning a particular transaction is terminated.” 3 Ronald E. Mallen, Legal Malpractice § 23:44 at 543 (2019 ed. 2019) (quotation marks omitted). Under a continuing negligence theory, the statute of limitations period does “not begin to run until the date of the last act of negligence”—the date of last injury. See Baker v. Farrand, 2011 ME 91, ¶ 20, 26 A.3d 806; see also Dickey v. Vermette, 2008 ME 179, ¶ 9, 960 A.2d 1178; 3 J.D. Lee & Barry A. Lindahl, Modern Tort Law: Liability and Litigation § 25:123, at 25-242 to -243 (2d ed. 2002) (“Under the continuing tort doctrine, if the negligence involves a continuing tort involving a continuing injury, the statute of limitations does not begin to run until the wrong terminates.”) complaint—within the statute of limitations. 14 M.R.S. § 753-B(1). In the context of actions for attorney malpractice, we decline to adopt either doctrine and affirm the judgment dismissing the complaint as untimely pursuant to 14 M.R.S. §§ 752, 753-B.

The former client had retained the defendants to bring a defective products claim in federal court.

After discharge, the client claimed substantial damages for an allegedly defective notice

Bernstein Shur argued that the act giving rise to Packgen’s alleged injury—the basis for Packgen’s cause of action against it—occurred on May 29, 2008, the date the defective notice was sent to Covalence, and therefore the statute of limitations expired on May 29, 2014, three years before Packgen filed its complaint…

Given the legislative history underpinning the adoption of the occurrence rule in section 752, the plain language of section 753-B regarding actions against attorneys, and the strict construction we apply to statutes of limitations, we conclude that the Legislature intended to limit the accrual of a cause of action for attorney negligence or malpractice to the “act or omission giving rise to the injury”—that is, the attorney’s singular act or omission that proximately caused the harm to the client, 14 M.R.S. § 753-B, and not to the attorney’s ongoing failure to correct that singular act or omission. In this case, the act giving rise to Packgen’s alleged injury occurred on May 29, 2008, and Packgen’s claim expired on May 29, 2014, six years after the service of the defective notice letter, and it is now time barred, 14 M.R.S. §§ 752, 753-B. We must effectuate the Legislature’s language and we may not hold otherwise.

Dissent  (in part) of HJELM, J., with whom ALEXANDER and JABAR, JJ., join

For two fundamental reasons, I disagree with the Court’s conclusion that Packgen, Inc.’s claim for professional negligence, filed against its former attorneys, Bernstein, Shur, Sawyer & Nelson, P.A., is barred by the statute of limitations. First, in my view, the complaint sufficiently alleges that some negligent omissions occurred within the period of limitations, and so that part of Packgen’s claim should survive for that reason alone. Second, the doctrine of continuing negligence, which we have adopted in cases involving medical negligence, should be applied to claims of legal malpractice and, at this very early phase of the case, entitles Packgen to pursue the entirety of its negligence claim. For these reasons, I respectfully dissent…

Because Packgen’s amended complaint alleges negligence that occurred within the limitations period, which runs forward from December 11, 2009, I conclude that the court erred by dismissing that portion of Packgen’s claim…

I part ways with the Court, however, when it concludes that this case does not allow for the application of a doctrine that is, in effect, a subsidiary of the continuing representation theory—namely, the continuing negligence doctrine.

(Mike Frisch)