ILNews

Justices asked to take legal malpractice case

Michael W. Hoskins
January 1, 2008
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The Indiana Supreme Court is being asked to take a legal malpractice case in which an Indianapolis law firm got hit with an $18 million verdict two years ago.

Attorneys representing law firm Fillenwarth Dennerline Groth & Towe filed a petition for transfer with the state's highest court Monday in Frederick W. Dennerline III, et al. v. Jim Atterholt, Insurance Commissioner of the State of Indiana, No. 49A04-0610-CV-557. This move comes following the Indiana Court of Appeals ruling in May that upheld the verdict handed down by a Marion Circuit Court jury in August 2006.

The case stems from a failed health plan that left 8,200 Hoosiers with unpaid medical bills. The jury found the firm liable for failing to notify trustees about growing financial losses in the Indiana Construction Industry Trust, which was created by a dozen construction-related companies to cover non-union employees. During trial, partner Dennerline was shown to have knowledge of the financial woes and the jury determined that amounted to legal malpractice.

On appeal, the firm raised six issues that included preserving error about a legal malpractice expert's testimony, and whether the trial court abused its discretion in ruling on discovery motions and one of the four legal theories used relating to legal-malpractice liability. The majority affirmed on all the issues, but Judge Carr Darden dissented on one issue regarding the jury's finding on Dennerline's 100 percent fault. He noted the insurance department should not receive what he saw as a "windfall" but added the state agency should be able to collect any legal costs, including attorneys' fees and interest, for prosecuting this action and any unsettled claims.

The intermediate appellate court in mid-July denied a rehearing petition, and Hammond-based Eichhorn & Eichhorn, which represents Dennerline and the firm, sent the transfer petition to the appellate clerk's office by certified mail Monday. The clerk's office had not listed it on its docket by this afternoon.

In the 21-page petition obtained by Indiana Lawyer, attorneys urge the justices to consider four questions for transfer: whether the liability claim presented at trial and relied on by the Court of Appeals is preempted by the Employee Retirement Income Security Act and unsupported by evidence; whether the judgment and non-party defendant settlements exceed the provable damages without statutory authorization; whether Dennerline's due process rights were violated by the use of a liquidation proceeding order in establishing the damages amount; and whether the trial court committed reversible error in prohibiting discovery and allowing a witness a week before trial.

Since the verdict, the 45-year-old firm has given the insurance commissioner rights to sue its legal malpractice carrier, ProAssurance and parent company ProNational Insurance, in a separate federal civil suit. Filed in June, that pending case accuses the company of refusing to settle the case and alleges bad faith and breach of contract. The insurance company has filed a motion to dismiss that case because the state courts' appellate review isn't complete and that document points out that a transfer request was coming in the state appeal; the federal judge hasn't issued a decision on that.
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  1. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  2. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

  3. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  4. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  5. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

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