Attorney Sued For Inadequate Settlement of Car Accident Claim After Recovery of Full Insurance Policy

On January 18, 2023 an appeals court reversed a Suffolk County, Supreme Court of New York Judge who had dismissed a legal malpractice claim holding that the law firm had not met its burden of proof on a pre-trial motion for summary judgment. The underlying case involved a sanitation worker/pedestrian who was struck by a car while loading a garbage truck. The plaintiff retained an attorney who quickly settled the claim with the owner/driver of the car for their full $50,000 auto insurance policy coverage. However, because there was a workers compensation lien that had to be repaid (WC paid plaintiff's medical expenses and lost wages)- the client received zero compensation and his attorney (who received $16,000+ out of the settlement fund) said the client actually still owed the law firm $45.00. A second law firm was retained by the plaintiff who secured the $50,000 supplementary uninsured motorist's coverage from the auto policy on the garbage truck. (No explanation provided on who identified SUM carrier or if there was a defense on notice or consent.) Upset, the plaintiff sued his first attorney claiming that he departed from accepted legal practices for failing to pursue a recovery from the personal assets of the driver/owner, as well as the $50,000 SUM coverage.

For the plaintiff to succeed on his legal malpractice claim at trial he must prove that he would have won his case and have collected money in excess of the $100,000 total settlements received from the car driver/owner and his employer's SUM policy, but for the negligence of his attorney. The appellate court correctly restored the dismissed legal malpractice action because when the law firm filed a motion for summary judgment, they assumed the burden of proof on the collectability issue. In other words, the law firm as the movant had to submit proof that any judgment entered against the driver/owner, seeking their personal assets, would have been fruitless. The question to be addressed at trial--was the owner and driver of the car judgment proof? If so, the plaintiff will lose the trial. Chicas v Cassar, 2023 WL 219618

Ronald C. Burke, Esq

Trial Attorney with 30+ Years of Experience Attorney Ronald C. Burke, Esq. has more than 30 years of experience and has focused his career on representing clients in cases involving personal injury, medical malpractice and legal malpractice. He is a seasoned trial lawyer and has won many seven-figure settlements and verdicts for his clients over the years, including many case victories listed among the largest in the history of the New York State. He has been featured in the news and is a regular lecturer for the New York County Lawyers Association, as well as having lectured before the New York State Bar Association. Ron is also an attorney with Kelner & Kelner, a New York personal injury law firm. Awards and Accolades Mr. Burke's awards and accolades are many. Among them, he has been included in New York Super Lawyers® each year since 2010, and he has received the highest-possible AV® Rating from Martindale-Hubbell®. Verdict Search, a part of the New York Law Journal, frequently recognizes his notable successes after winning some of the highest settlements and verdicts in past years. He was also featured in their list of the "Top New York Verdicts " and "Top New York Settlements." He is a member of the New York State Bar Association and is licensed to practice law in the U.S. District Court for the Southern and Eastern Districts of New York, as well as before the United States Supreme Court. When Attorney Burke is not handling legal malpractice cases, he is highly involved in the local community. He was a member of the Village of Rockville Centre Volunteer Fire Department, has served on the local school board and as Chairman of the local Zoning Board. Learn more about Attorney Burke and how he can skillfully handle your malpractice case by contacting the Law Offices of Ronald C. Burke, Esq. right away to schedule your complimentary case evaluation. Our firm is here to help! Contact a New York Legal Malpractice Attorney Our firm provides each client's case with thorough preparation and aggressive representation, ensuring that you win the best possible results for your case whether it is settled or goes to trial. As a seasoned trial lawyer, Mr. Burke can provide the strong and relentless representation you need to establish negligence in a legal malpractice case and to recover any damages you may have suffered. Our firm can recover compensation for pre-trial and trial malpractice, violations of fee arrangements, loss of income, pain and suffering, and much more. Contact us today!


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Go to Top