The plaintiff claimed that FKB’s client, a prominent construction accident defense law firm, failed to timely notify the plaintiff’s excess insurance carrier that the damages in an underlying personal injury action exceeded the limits of the plaintiff’s primary insurance policy.

FKB successfully moved to dismiss the plaintiff’s complaint in the New York Supreme Court, Bronx County, arguing that the window to timely notify the plaintiff’s excess insurance carrier of the excess exposure in the underlying personal injury action against the plaintiff had closed when the plaintiff was represented by a prior law firm.  As to the plaintiff’s allegations that FKB’s client should have sued the plaintiff’s previous counsel for legal malpractice, FKB successfully argued that such an action was beyond the scope of representation.

On appeal, the Appellate Division, First Department unanimously affirmed the lower court’s decision and agreed with FKB’s argument that plaintiff “cannot establish the element of proximate causation necessary to proving its legal malpractice claim” because it cannot show that if FKB’s client had provided notice to the excess carrier when it was retained, the carrier would not have denied coverage.” The Appellate Division, First Department further agreed with FKB’s argument that FKB’s client did not “have the obligation to advise plaintiff of all potential malpractice claims against predecessor counsel when it was beyond the scope of its retention.”

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