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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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