FKB’S A. MICHAEL FURMAN AND JASON A. KAYNE SUCCESSFULLY OBTAIN DISMISSAL OF LEGAL MALPRACTICE ACTION INVOLVING UNDERLYING CONSTRUCTION LITIGATION

09/17/2019

FKB’s A. Michael Furman and Jason A. Kayne obtained a pre-answer dismissal of a legal malpractice action against a well-known defense firm arising from representation of a construction contractor in underlying property damage litigation

The plaintiff alleged that FKB’s client negligently entered into a stipulation on the plaintiff’s behalf to indemnify the owner of a construction site for defense of an underlying multi-million dollar property damage litigation where the construction performed by the plaintiff and its subcontractors caused the damage.

FKB had previously succeeded in dismissing the same legal malpractice claims made by this plaintiff without prejudice, on the grounds that the underlying property damage action was still ongoing. The Court at the time had correctly noted that a finding as to the owner’s negligence in the underlying action was required for the plaintiff to properly plead that entry into the indemnification stipulation proximately caused it the alleged damages. Thereafter, the parties to the underlying property damage litigation conceded liability and a damages-only trial was held, reaching a verdict in July 2013.  Resulting post-trial motions were filed, and ultimately resolved by 2018.  In September 2018 to file a new action against FKB’s client, claiming that the language of the prior Court’s decision in 2013 effectuated a toll of the statute of limitations.

FKB thereafter moved pre-answer to dismiss plaintiff’s claims on the grounds that not only was Plaintiff unable to plead and prove any elements of a legal malpractice claim, but that the plaintiff’s action was unequivocally time-barred. The Court wholly adopted FKB’s argument that plaintiff’s entry into a stipulation conceding liability in the underlying action caused the three-year statute of limitations to accrue in July 2013 and expire in July 2016. Consequently, the Court agreed with FKB that Plaintiff’s lawsuit was time-barred.

If you have any questions about this decision, or the defense of attorneys in general, please contact A. Michael Furman or Jason A. Kayne.

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