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Justices rule on lawyer liablity coverage case

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Questions exist as to whether the professional liability coverage carrier for a disbarred attorney misled two former clients about helping them collect on legal malpractice claims. In a ruling on Tuesday, the Indiana Supreme Court reversed and remanded the case of Michael Ashby and Randy O’Brien v. The Bar Plan Mutual Insurance Company and C. Bruce Davidson, Jr., No. 49S04-1011-CV-635, for further proceedings.

The case involves ex-Indianapolis lawyer, Clifton Bruce Davidson Jr., a former police officer-turned-attorney who deserted his law practice in 2003 and went on a multi-state bank robbing spree before eventually ending up in federal prison and being disbarred by the Indiana Supreme Court in August 2004. The Bar Plan Mutual Insurance Company issued a policy to Davidson in 2003 without being informed of any existing issues, such as malpractice allegations by two prisoner clients, Michael Ashby and Randy O’Brien, who Davidson represented prior to leaving his practice.

The clients tried to collect through the insurance carrier, but the Bar Plan refused to indemnify Davidson because he hadn’t complied with the contract requirements. Under the policy secured before he abandoned his practice, Davidson was supposed to provide written notice of any claim. In this case, he was running from the law during the relevant time period and did not do that. Instead, Ashby and O’Brien notified the Bar Plan of their claims. The insurer argued that was not sufficient to meet the policy requirements.

Marion Superior Judge Robyn Moberly granted summary judgment for the Bar Plan, but the Indiana Court of Appeals last summer reversed that judgment and remanded for trial proceedings on grounds that the clients’ actual notice was sufficient. The Indiana Supreme Court granted transfer in November, and the justices have unanimously found enough issues exist for further proceedings.

On the question of coverage, the justices held the Bar Plan has established no genuine issues of fact exist about Davidson’s failure to comply with the policy condition requiring personal notification of a claim; he didn’t and that’s clear, the justices determined. But that isn’t dispositive because Ashby and O’Brien also argued against summary judgment on grounds of waiver and estoppel.

Written communications between the clients and the Bar Plan don’t make it clear the insurer wasn’t implying coverage, the court determined.

“Conspicuously absent was any caution about possible non-coverage due to the absence of written notice from Davidson, the insured,” Justice Brent Dickson wrote. “From the designated materials, we find genuine issues of fact as to whether Ashby and O’Brien, and their counsel, were misled to believe that the Bar Plan provided professional liability coverage for Davidson with respect to their claims.”

As a result of that, it’s unclear at this point whether Ashby and O’Brien might have detrimentally relied on that belief and that is something that should be examined at the trial level, the justices found.
 

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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