FKB’s Patrick Brennan obtained a directed verdict on behalf of a prominent plaintiff’s personal injury law firm at the close of the plaintiff’s case in a legal malpractice trial before Justice F. Dana Winslow in Nassau County Supreme Court.
The central issue in this legal malpractice action was whether FKB’s client departed from the acceptable standard of care when they failed to file a lawsuit against the driver and the lessor of a vehicle involved in a rear-end collision with a vehicle driven by the plaintiff on April 20, 2005, prior to the effective date of the Graves Amendment on August 10, 2005. The Graves Amendment, a federal statute, abolished vicarious liability for companies that rent or lease motor vehicles based on the negligent driving of their customers.
Shortly after the Graves Amendment was passed, FKB’s client was discharged, and a new law firm took over for the plaintiff and brought suit against the driver of the other vehicle. Liability was not contested, and with the added development that the plaintiff underwent disc surgery at L5-S1 in 2006 for injuries, the matter settled for the limits of the offending driver’s insurance policy, $100,000. The plaintiff then commenced this legal malpractice action, claiming that if the lessor had been sued prior to the enactment of the Graves Amendment, the recovery would have been substantially greater.
At trial, FKB’s clients testified that at the time of the Graves Amendment, they did not consider the plaintiff’s injuries to constitute “serious physical injury” in that the plaintiff had not yet had a surgical procedure, and in any event, causation was not established due to certain pre-existing injuries caused by a prior motor vehicle accident. At the close of the plaintiff’s case in the legal malpractice action, the plaintiff’s counsel failed to introduce evidence of the leasing company and its available insurance. Thereafter, FKB’s Pat Brennan moved for a directed verdict, arguing that the plaintiff failed to establish proximate cause, i.e. that “but for” the failure to file the motor vehicle accident lawsuit prior to August 10, 2005, the plaintiff would have recovered a greater amount. Justice Winslow agreed, finding that without proof of a lease and corresponding insurance, the plaintiff cannot prove that he would have recovered any amount beyond the $100,000 recovered against the driver in the underlying motor vehicle lawsuit.