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. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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