Back To The Future

The District of Columbia Court of Appeals remanded a dismissed legal malpractice claim

Appellant Roger Tovar brought a legal malpractice action against the law firm Regan Zambri Long, PLLC, and two of its attorneys (collectively, “Regan”), alleging that, in representing him in a negligence action against McKesson Corporation—which ultimately settled while it was on appeal following a favorable verdict for Mr. Tovar—Regan failed to assert a particular claim for damages. Mr. Tovar alleges that because Regan failed to seek damages for his future medical care expenses, he lost the opportunity to win a multi-million-dollar award.

Regan moved to dismiss the complaint or in the alternative for summary judgment. The trial court granted Regan’s motion to dismiss on two alternative grounds: (1) Mr. Tovar, in settling his negligence action against McKesson, released Regan from future liability; and (2) Regan’s decision to forgo a claim for future medical care expenses was protected under the judgmental immunity doctrine.

Mr. Tovar appeals, contending that (1) the trial court erred in granting the motion to dismiss because the court considered material outside of the complaint and applied the wrong standard for dismissal under Super. Ct. Civ. R. 12(b)(6), and (2) to the extent the court essentially granted summary judgment for Regan, it did so by relying on erroneous or disputed facts and without granting Mr. Tovar’s Super. Ct. Civ. R. 56(d) request for additional discovery so that he could oppose Regan’s summary judgment motion. Regan cross-appeals, arguing that the trial court erred in finding that Mr. Tovar’s claim was not barred by the statute of limitations as a ground to dismiss the claim.

We affirm the trial court’s statute-of-limitations determination, although on different grounds, but otherwise reverse the dismissal of the complaint and remand for further proceedings.

The client had suffered grievous injuries in an automobile accident; defendants asserted that the decision to forego future medical care expenses was a strategic choice approved by the client.

The court

We agree that the trial court erred in granting Regan’s motion to dismiss. Although the court did not err in considering the settlement agreement, the agreement was not an appropriate basis for dismissing Mr. Tovar’s claim because it did not release Regan from future liability.

As for the court’s judgmental-immunity ruling, we review that ruling as a grant of summary judgment because judgmental immunity is an affirmative defense and the court considered matters outside the complaint. Given the record before us, we are unable to resolve whether summary judgment was proper because the court failed to address Mr. Tovar’s request for additional discovery before ruling on summary judgment.

Statute of limitations

We agree with Regan that the COVID-19 orders did not toll Mr. Tovar’s limitations period, but we conclude that Mr. Tovar nonetheless filed his complaint within three years of the accrual of his claim and therefore affirm the trial court’s ruling that Mr. Tovar’s claim is not time-barred.

Release

Here, the release provision does not list Regan as one of the “Releasees,” and it is unequivocal that only “McKesson Corporation” was released from any further action related to the accident. Thus, dismissing Mr. Tovar’s claim on the grounds that the settlement agreement released Regan from liability was error…

Settlement agreements resolve disputes between parties but do not necessarily address the separate professional duties owed by attorneys to their clients. When a client alleges that the attorney’s conduct was unreasonable or constituted malpractice, the existence of a settlement agreement between the underlying parties does not always serve as a bar to a client’s later malpractice action. See E.B.P., Inc. v. Cozza & Steuer, 694 N.E.2d 1376, 1379 (Ohio Ct. App. 1997) (concluding that a malpractice claim remains viable if the attorney’s conduct was unreasonable or constitutes malpractice); cf. Durkin v. Shea & Gould, 92 F.3d 1510, 1517-18 (9th Cir. 1996) (“[A] court-approved settlement or judgment does not immunize an attorney from a subsequent malpractice action.”).

Here, Mr. Tovar’s settlement may have resolved his claims against McKesson, but the act of settling does not bear on whether Regan’s conduct was reasonable and does not necessarily absolve Regan of any professional negligence that it may have committed during the representation.

Judgmental immunity

The judgmental immunity doctrine “provides that an informed professional judgment made with reasonable care and skill cannot be the basis of a legal malpractice claim.” Biomet Inc., 967 A.2d at 666. Judgmental immunity is an affirmative defense that is generally not amenable to resolution at the motion-to-dismiss or summary-judgment stage. See id. at 665.

The trial court found that Regan’s decision to omit Mr. Tovar’s claim for future medical expenses constituted a protected legal judgment. The court noted Regan’s exercise of discretion in pursuing “the most favorable outcome” for Mr. Tovar, opting to “not second-guess the very trial strategy that once made [Mr. Tovar] very happy.”

The factual bases supporting Regan’s “informed professional judgment,” however, are not evident from the face of the complaint. See Biomet Inc., 967 A.2d at 666. Instead, they are contained in [defendant attorney] Cornoni’s affidavit, which was attached to Regan’s written motion. While the court did not directly cite to Mr. Cornoni’s affidavit, it could not have evaluated the merits of the judgmental-immunity defense without it. Consequently, as the affidavit was a matter outside the pleadings, the court ruled as a matter of summary judgment rather than dismissal for failure to state a claim.

What a difference a day makes

We hold that the anniversary method, which does not count the day of the triggering event in the limitations period, is more compatible with Super. Ct. Civ. R. 6(a) and adopt this method over the calendar method. See Marcello, 212 F.3d at 1009 (noting that Fed. R. Civ. P. 6(a) is the basis for the anniversary method). Furthermore, the anniversary method is simple and predictable, aligns with how we ordinarily track the passage of time, and provides a clear deadline for initiating legal action.

(Mike Frisch)