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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. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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