Smoker

The Georgia Court of Appeals upheld the dismissal of a Fulton County legal -malpractice complaint against Barnes & Thornburg attorney James Leonard in a unanimous opinion on Tuesday.

Leonard was sued by his former client, Cynthia Cox-Ott, for professional negligence, breach of contract and legal expenses after the life insurance fraud case he was hired to represent her estate for was dismissed in federal court.

According to an opinion footnote, Cox-Ott asserted that had the fraud case been successful “It would have resulted in $10 million in punitive damages, and she sought to recover same from Leonard.”

The underlying case concerned a $4 million life insurance policy for Cox-Ott’s ex-husband obtained through AXA equitable life insurance company, according to the opinion. The catch was that Cox-Ott’s ex-husband was a smoker and, while the company ended up issuing a policy for tobacco users, the example they initially presented to her was an example of a nonsmoker policy with much lower premiums than what she would end up being charged.

At the time, Cox-Otts claimed she hadn’t gotten a copy of the actual policy she was sold (though 10 years later she said she found it in a safe she hadn’t used in many years) and after being invoiced for significantly higher premiums than what she’d paid, discovered discrepancies in what she was originally shown and what she was ultimately sold.

Cox-Otts hired Leonard to help and he told her she could either negotiate with the company for a different insurance policy or sue and recommended she pursue claims “under Georgia law rather than New York law because New York courts are not as favorable to policyholders.” A federal court dismissed the case, holding that the merger doctrine prevented them from asserting fraud claims and that the trust didn’t prove it could show justifiable reliance or that it was precluded from reading the policy. Furthermore, the court said that by seeking reformation, the Trust affirmed the policy and was therefore bound by its terms.

“Litigation strategy can be much debated among lawyers,” Leonard’s attorneys, former Supreme Court Justice Keith Blackwell, Steven Collins and Meredith Kingsley of Alston & Bird, wrote in their appellee brief. “That leaves even seasoned litigators open to second-guessing, especially when their decisions are viewed in hindsight after an adverse ruling.”

The reply brief, filed by plaintiff-appellant counsel David Hungeling and Adam Rubenfield of Hungeling Rubenfield, countered: ‘If true, this argument calls into question Appellee Leonard’s judgment as a ‘seasoned litigator’ who pursued the case and never apprised Appellant appropriately.”

Ultimately, the intermediate court opinion authored by Judge Todd Markle upheld the dismissal of the malpractice claim, reasoning that the attorney-client relationship in question was between Leonard and the estate, not Cox-Otts, that his decisions were protected by judgmental immunity and that he wasn’t negligent in conceding the eventually-discovered delivery of the insurance policy—in short, she didn’t prove that the outcome would have been different had he made different decisions in how he approached her case.

Neither party responded to request for comment by the time of publication.

The case is Cox-Otts v. Barnes & Thornburg, No. A23A1733, in the Georgia Court of Appeals. Presiding Judge Christopher McFadden and Judge Trenton Brown concurred with the opinion.

(Mike Frisch)