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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. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

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